STATE OF NEW JERSEY v. ROLANDO BETANCOURT

NOT FOR PUBLICATION WITHOUT THE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.

ROLANDO BETANCOURT, a/k/a

PAUL RODGERS,

Defendant-Appellant.

_____________________________________

July 20, 2016

Submitted December 7, 2015 Decided

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No.

06-08-1277.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

In 2007, a jury found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1(b), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and acquitted him of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). He was sentenced to a forty-year prison term for kidnapping with an eighty-five percent period of parole ineligibility, and a concurrent five-year prison term for aggravated assault.

Defendant filed a direct appeal and, in an unpublished opinion, we affirmed defendant's conviction and the five-year sentence imposed on the aggravated assault charge. However, we reversed and granted defendant a new trial on the kidnapping charge, because the trial court had failed to give jury instructions that would have permitted the consideration of a lesser-included third-degree offense of criminal restraint, N.J.S.A. 2C:13-2. State v. Betancourt, No. A-2981-07 (App. Div. Nov. 30, 2009), certif. denied, 201 N.J. 446 (2010).

In 2010, a jury again found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1(b), and the court imposed a forty-year term of imprisonment with an eighty-five percent period of parole ineligibility. Defendant filed a direct appeal of his conviction and sentence, but in an unpublished opinion we affirmed both. State v. Rodgers, No. A-4237-10 (App. Div. July 13, 2012), certif. denied, 213 N.J. 568 (2013).1

The facts underlying defendant's convictions are set forth at length in our initial opinion, Betancourt, slip op. at 2-4 (App. Div. Nov. 30, 2009), and, as noted in our second opinion, the evidence at the second trial was essentially the same as that at the first trial, Rodgers, supra, slip op. at 3. For context, we briefly summarize the evidence as reported in our second opinion.

In May 2006, defendant severely beat his wife, from whom he was separated, and confined her in her apartment until she was able to escape. The amount of time the victim was confined was disputed at both trials. The defense contended she was confined for only a minute or two, but the victim claimed she was confined between one and two hours, including a period of time during which she was unconscious from defendant's beating. Eventually the victim was able to escape from the apartment and out onto the street, where an off-duty police officer who noticed she appeared injured called an ambulance. Ibid.

In April 2013, defendant filed a PCR petition in which he alleged, without detail, that the attorney who represented him at the second trial had been ineffective. In December 2013, defendant filed an amended petition setting forth various alleged errors the trial court committed and mistakes counsel made during the second trial. Defendant elaborated upon those alleged errors and blunders in a brief submitted by counsel. On March 13, 2014, after placing a comprehensive oral opinion on the record, the PCR court denied defendant all relief sought in his petition.

Defendant did not appeal every issue asserted in his amended petition and brief before the PCR court, but does present the following arguments for our consideration.

POINT I - THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT WAS DENIED HIS RIGHT TO MAKE AN INTELLIGENT AND KNOWING DECISION WITH RESPECT TO HIS RIGHT TO TESTIFY IN HIS OWN BEHALF, AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PROVIDE ADEQUATE LEGAL REPRESENTATION TO HIM REGRDING THIS CRITICAL DECISION, COMBINED WITH THE TRIAL COURT'S UNEXPECTED MODIFICATION OF ITS RULING IT HAD MADE PRIOR TO TRIAL REGARDING THE SECURITY PROTOCOL TO BE UTILIZED IN THE EVENT HE TESTIFIED.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CROSS-EXAMINE THE ALLEGED VICTIM REGARDING HER DESIRE TO HAVE THE CHARGES AGAINST THE DEFENDANT DISMISSED BY THE STATE.

Defendant filed a supplemental brief as a self-represented litigant, in which he presents the following argument point

POINT I TRIAL COURT ERRED BY APPLYING N.J.S.A. 3:22 4 TO DENY DEFENDANT AN EVIDENTIARY HEARING TO SHOW THE INEFFECTIVENESS OF ASSISTAN[CE] OF TRIAL COUNSEL

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test, establishing that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Just before the second trial, the trial court ordered there be enhanced security in the court room. The court did so because, just after the first trial, defendant had been charged with witness intimidation and during his arraignment on that charge, assaulted and attempted to disarm a sheriff's officer and tried to escape from the courtroom.2 At the second trial, the trial court ordered that, if defendant testified, he had to remain at counsel table.3

His counsel's brief on the present appeal asserts defendant's primary issue is that his counsel at the second trial failed to provide him with sufficient information about the case to enable him to make an informed decision about whether or not he should testify. He claims trial counsel did not share or discuss with him any of the discovery or anticipated testimony of the witnesses, and what his testimony would if he testified, including what he likely would be asked on cross-examination. Defendant also claims his attorney was not prepared for trial. Because of his ignorance of the case and his counsel's trial strategy, defendant asserts he had no choice but to refrain from testifying.

First, we note that, as this was the second trial in this matter, defendant was already familiar with the issues and aware of the evidence the State sought to admit. Second, defendant does not identify the discovery or other information counsel failed to share with him that would have induced him to testify. Third, defendant does not specify what in counsel's performance or how counsel's failure to be more communicative with him about these matters caused him to lose the trial. Finally, we question whether there was as little communication between defendant and counsel as he suggests. In his supplemental brief, defendant mentions he brought to counsel's attention certain inconsistencies in the victim's testimony during the first trial, and instructed counsel to call certain witnesses at the second trial, which are reflective of substantive lawyer-client communications.

Defendant also asserts that his attorney advised that if he testified from counsel table, he would not prevail. He claims that when his counsel gave him this advice, defendant's "will was overborne" and "bridled [my] deep desire to testify and proclaim my innocence." He argues that by "scar[ing]" him from testifying, his attorney "wrongly interfered with my fundamental right to testify" as it "muzzled me." We consider this argument to be without sufficient merit to warrant discussion on the issue whether defendant's performance was deficient. Even if counsel's advice had met the first prong of the Strickland-Fritz test, defendant does not show he met the second prong. Defendant fails to state what testimony he would have provided that, within a reasonable probability, would have changed the outcome. State v. Porter, 216 N.J. 343, 349 (2013).

It is undisputed that at one time the victim wanted the charges against defendant dropped. Defendant contends that trial counsel should have cross-examined the victim about such fact and, had he done so, his chances of prevailing would have been enhanced. In the alternative, because the victim told the attorney who represented him at the first trial that she wanted the charges dismissed, defendant argues his counsel at the second trial should have called his former attorney as a witness so he could have testified to what the victim had disclosed to him.

First, defendant concedes the victim's wish to have

the charges dismissed does not constitute exculpatory evidence.

Second, the fact that at one time the victim wanted the State to drop the charges did emerge during the victim's cross-examination at the first trial, yet defendant was still convicted. Had the same evidence emerged during the second trial, as it had during the first trial, the State likely would have drawn out from the victim on redirect examination that she had appeared at trial voluntarily and would have noted during summation that the "charges weren't hers to drop."

Defendant's remaining arguments were either not raised before the PCR court and thus are not properly before us, see State v. Galicia, 210 N.J. 364, 383 (2012); pertain to errors made by the trial court that could have been but were not raised on direct appeal and are now barred under Rule 3:22-4; or are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We are satisfied defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).

Affirmed.

1 As we noted in our second opinion, at some unspecified point in time defendant assumed the name of Paul Rodgers. Rodgers, supra, at n.1. Defendant filed the present appeal under the name of Rolando Betancourt, although indicated he is also known as Paul Rodgers.

2 With respect to that incident, defendant was subsequently found guilty of aggravated assault and attempted escape, and sentenced to a twenty-year prison term.

3 In addition to the requirement that defendant testify at counsel table, four plainclothes officers from the Department of Corrections and five sheriff's officers were strategically positioned around the courtroom.