STATE OF NEW JERSEY v. PEDRO SOLAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO SOLAR, a/k/a PEDRO

SOLER, a/k/a/ PETE SOLER,

a/k/a PETER SOLER, a/k/a

SAM SOLER,

Defendant-Appellant.

____________________________

March 11, 2015

Submitted February 24, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0146.

Joseph A. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

GraceH. Park,Acting Union County Prosecutor, attorney forrespondent (KimberlyL. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a July 12, 2013 order denying his petition for post-conviction relief (PCR). Defendant contends that his trial, sentencing, and appellate counsel were ineffective. We affirm the denial of PCR as to defendant's trial counsel, but we remand to reconsider the legality of defendant's sentence and to reconsider defendant's PCR contentions as to defendant's sentencing and appellate counsel in light of our Supreme Court's recent decision in State v. Perez, ___ N.J. ___ (2015).

I.

We discern the following facts from the evidence adduced at the jury trial.1 The victim, C.A., went to a job interview conducted by defendant. Defendant requested C.A. take off her coat and while C.A. was hanging her coat on the coatrack, defendant made sexual advances towards her, including placing her in a "bear hug" from which she escaped. Defendant followed C.A. down a stairwell, pushed her against a wall, put his hand inside her pants and touched her vagina, then exposed himself and ejaculated onto C.A.'s pants and the floor. C.A. reported the incident to her mother and to the police who determined that the semen found on C.A.'s pants belonged to defendant.

Defendant asserted at trial that the sexual contact was consensual. The jury found defendant not guilty on Count One, but guilty on Count Two.

At sentencing, defendant's counsel conceded that defendant was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6.4e because defendant was under "community supervision for life" ("CSL"), even though the Legislature previously replaced CSL with the phrase "parole supervision for life" ("PSL"). L. 2003, c. 267. The judge then sentenced defendant to a mandatory extended term of four years in prison with four years of parole ineligibility.

Defendant appealed the conviction. His appellate counsel did not raise the issue of defendant's mandatory extended term sentence. We affirmed defendant's conviction in an unpublished opinion and the Supreme Court denied certification. State v. Solar, No. A-5033-07 (App. Div. Nov. 30, 2010), certif. denied, 205 N.J. 520 (2011).

Defendant subsequently filed this PCR petition asserting that he received ineffective assistance of counsel and an illegal sentence. Defendant's PCR counsel moved for discovery prior to the hearing seeking to examine C.A.'s blouse for "biological material to support [defendant's] defense that the sexual contact was consensual[.]"

The PCR judge denied the motion for discovery, and subsequently denied defendant's PCR petition finding that "[defendant] cannot prove ineffectiveness of counsel in this matter. And I . . . don't think [defendant] even has made a prima facie showing that he's entitled to a hearing in that regard."

On appeal, defendant raises the following points

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

POINT II

THE TRIAL COURT ERRED IN DENYING [PCR] COUNSEL'S MOTION FOR DISCOVERY IN ORDER FOR AN EXPERT TO EXAMINE THE BLOUSE WORN BY [C.A.] FOR THE PRESENCE OF DNA MATERIAL.

POINT III

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] SINCE TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT BY ACKNOWLEDGING THE DEFENDANT QUALIFIED FOR MANDATORY EXTENDED TERM SENTENCING.

POINT IV

THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE AN ISSUE ON APPEAL MAINTAINING THE DEFENDANT WAS NOT ELIGIBLE FOR A MANDATORY EXTENDED TERM PURSUANT TO N.J.S.A. 2C:43-6.4e SINCE HE WAS SERVING A SENTENCE OF [CSL] RATHER THAN [PSL].

II.

We conclude that defendant failed to demonstrate that his trial attorney rendered ineffective assistance of counsel. We therefore reject defendant's argument that the PCR judge erred by denying his petition without conducting an evidentiary hearing.

A.

We give deference to the PCR court's factual findings based upon "adequate, substantial and credible evidence[,]" but review de novo the legal conclusions of the PCR court. State v. Harris, 181 N.J. 391, 415-16 (2004) (citation and internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). For a defendant to obtain PCR based on ineffective assistance grounds, he is obligated to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

To show deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." State v. Bey, 161 N.J. 233, 251 (1999) (citation and internal quotations marks omitted), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). "Merely because a trial strategy fails does not mean that counsel was ineffective." Ibid. Prejudice can be established by showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Chew, 179 N.J. 186, 203-04 (2004) (citation and internal quotation marks omitted).

Here, defendant contends that his trial attorney was ineffective by failing to cross-examine C.A. on an inconsistent statement regarding the incident. The PCR judge noted C.A. initially told the police that defendant ejaculated on the floor, her pants, and her blouse, but testified at trial that defendant ejaculated on her pants and the floor. The State presented evidence that no biological material was found on the blouse.

Contrary to defendant's argument, however, defendant's trial counsel did raise the issue of the inconsistency in closing arguments and questioned whether C.A. was "being truthful with [the jury] or [was] she shifting the story to explain things" because she "testified that [defendant] ejaculated down at the floor, got the bottom of her pants." Defendant's trial counsel further attempted to impeach C.A.'s credibility by commenting about C.A.'s delay in reporting the incident to the police, the lack of any defensive marks or bruises on her person, and her civil suit against defendant's company in his closing statement.

B.

An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must establish a prima facie case, demonstrating a reasonable likelihood of succeeding under the Strickland/Fritz test. Id. at 463; see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Defendant failed to satisfy this standard.

III.

We reject defendant's argument that the judge erred by denying his PCR discovery request.

We review a decision on a motion for discovery prior to a PCR hearing under an abuse of discretion standard. State v. Marshall, 148 N.J. 89, 271, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Abuse of discretion means that "the trial court's decision must be so wide of the mark that a manifest denial of justice resulted." State v. Scherzer, 301 N.J. Super. 363, 424 (App. Div.), certif. denied, 151 N.J. 466 (1997).

Although a court has the power to order discovery "when justice so requires[,]" discovery should be allowed in a PCR proceeding "only in the unusual case." Marshall, supra, 148 N.J. at 269-70, (citation and internal quotation marks omitted). "[T]here is no post[-]conviction right to fish through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist." Id. at 270 (first alteration in original) (citation and internal quotation marks omitted).

Here, the PCR judge did not abuse his discretion by denying defendant's PCR discovery motion. The judge stated that

the burden is . . . on the defendant and discovery in PCR cases is only given in unusual cases. I don't believe that this is one of those cases. . . .

. . . .

Even had [trial counsel] had [the blouse] examined and it showed semen on it, which is contrary to where the evidence is at this point . . . [t]hat would not necessarily support his position.

There is no reason to second-guess the judge's decision. The State presented testimony at trial that defendant's semen was found on C.A.'s pants, but that there was no biological material on the blouse. However, even if semen was found on the blouse, the PCR judge correctly noted that it would not necessarily vindicate defendant or support his claim of consensual acts. Defendant's request to examine the blouse prior to his PCR hearing bespeaks of an attempt to confirm mere speculation, Marshall, supra, 148 N.J. at 270, which is not the purpose of PCR discovery.

IV.

We next consider defendant's arguments that his counsel at sentencing was ineffective because he conceded defendant was subject to a mandatory extended term sentence, and that his appellate counsel was ineffective because he failed to raise the mandatory extended term argument on appeal. We remand to the PCR judge to reconsider these issues in light of our Supreme Court's recent decision in Perez, supra.2

Perez concerns an issue similar to the one presently before us. The defendant in Perez was convicted of aggravated sexual assault and armed burglary in 1998, and sentenced to a prison term and CSL, pursuant to N.J.S.A. 2C:43-6.4. Perez, supra, slip op. at 15-16. The Legislature then amended N.J.S.A. 2C:43-6.4 in 2003 to replace CSL with PSL. Id. at 17 (citing L. 2003, c. 267). After the amendment to N.J.S.A. 2C:43-6.4, the defendant pled guilty to child luring and endangering the welfare of a child. Id. at 4. The court imposed a mandatory extended term pursuant to N.J.S.A. 2C:43-6.4e, determining that the change from CSL to PSL was "a matter of form not substance." Id. at 6 n.1. We affirmed the trial court's decision in an unpublished opinion. State v. Perez, No. A-2848-11 (App. Div. May 6, 2013).

The Supreme Court reversed our decision, holding that

the 2003 and subsequent amendments to N.J.S.A. 2C:43-6, by which the special sentence of PSL is introduced to the sentencing scheme for some sexual offenders and which substitutes PSL for CSL, cannot be considered a simple clarification of the Legislature's intent about the nature of the special condition of post-sentence supervision of certain sexual offenders. Rather, the 2003 amendment accomplishes two substantive alternations. First, it confirms the penal nature of the special conditions of CSL and PSL. Second, it enhances the penal exposure of a person previously sentenced to CSL for certain offenses committed while sentenced to that status. Such an enhancement violates the Ex Post Facto Clauses of the federal and state constitutions.

[Id. at 25-26.]

Here, defendant's sentence is of a similar nature to the sentence which the Court in Perez rejected as unconstitutional. Defendant was sentenced to CSL under the pre-2003 amendments to N.J.S.A. 2C:43-6.4 for a prior sexual misconduct offense. His conviction, which is the focus of his PCR petition, occurred after the Legislature amended N.J.S.A. 2C:43-6.4 replacing CSL with PSL. Defendant was then sentenced to a mandatory extended term under N.J.S.A. 2C:43-6.4e for the subsequent offense. Therefore, the PCR judge should reconsider whether defendant's sentencing and appellate counsel were deficient by conceding and not raising the mandatory extended term sentence issue, and whether defendant's sentence is illegal.

Affirmed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 A grand jury indicted and charged defendant with second-degree attempted sexual assault, N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:5-1 (Count One), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Two).

2 In fairness to the PCR judge, we note that the Court decided Perez after the judge issued the order under review.