STATE OF NEW JERSEY v. GABRIEL ROMERO SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIEL ROMERO SANCHEZ,

Defendant-Appellant.

___________________________

October 18, 2016

Submitted September 28, 2016 Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-2250.

Joseph E. Krakora, Public Defender, attorney for appellant (Craig S. Leeds, Designated Counsel, on the brief).

GurbirS. Grewal,Acting Bergen County Prosecutor, attorneyfor respondent (Catherine A. Foddai,Special DeputyAttorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); two counts of first-degree murder while engaged in the commission of a crime, N.J.S.A. 2C:11-3(a)(3) (count two and three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree burglary, N.J.S.A. 2C:18-2 (count five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven). The charges stemmed from the brutal murder of defendant's eighty-one-year old neighbor. There was DNA evidence connecting defendant to the crime scene, and he admitted in a statement to the police that he was in the victim's home and struck her several times. At trial, defendant denied he murdered the victim, raised an intoxication defense, and claimed the police coerced and threatened him to give the statement.

On March 18, 2009, defendant pled guilty to count one, amended to aggravated manslaughter, and to counts four through seven in exchange for the State's agreement to recommend a thirty-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, because during a presentence interview defendant denied he committed the offense and claimed that he only pled guilty on the advice of his attorney, the State requested a re-allocution of a factual basis. Defense counsel objected to the State's request, arguing that defendant's denial of guilt was not under oath; the State's action was tantamount to seeking a withdrawal of the plea agreement; and finality required the court to sentence defendant in accordance with the plea agreement.

The court declined to accept defendant's guilty plea and restored the case to the trial calendar. Defendant then filed a motion to suppress his statement to the police based on a Miranda1 violation. Following a hearing, the court denied the motion. The court distinguished State v. O'Neill, 193 N.J. 148 (2007), and found there was no evidence that defendant was a suspect when he was brought into the interview room; defendant made no admissions during the pre-Miranda phase of the interview; defendant received his Miranda warnings once facts developed him as a suspect; defendant indicated he understood the warnings and continued with the interview; and defendant admitted his involvement in the murder after receiving his Miranda warnings. The court also reviewed the recorded interview and found that defendant was not coerced or threatened. The court concluded that defendant's rights against self-incrimination were adequately safeguarded and he knowingly, intelligently, and voluntarily waived his Miranda rights.

Defendant testified at the trial. He admitted the he was in the victim's home the morning of the murder, but denied he murdered her. He also claimed that he was intoxicated, and the police coached his statement and threatened to harm his daughter if he did not confess.

A jury found defendant guilty on all counts. After merging certain counts, the court imposed a term of life imprisonment on count one, and a consecutive twenty-year term of imprisonment on count four. Both sentences were subject to NERA.2

Defendant appealed his conviction and sentence, arguing prosecutorial misconduct, error in the jury charges, and excessive and unduly punitive sentence. We affirmed the conviction and remanded for resentencing to allow the court to correct a merger issue and explain the basis for imposing a consecutive sentence as required by State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). State v. Sanchez, No. A-4385-10 (App. Div. Apr. 17, 2013) (slip op. at 27). Our Supreme Court denied certification. State v. Sanchez, certif. denied, 216 N.J. 13 (2013).

Defendant filed a PCR petition, arguing, in relevant part, that trial counsel rendered ineffective assistance by failing to: (1) preserve the plea agreement by failing to advise him not to speak to the probation officer; (2) request an adverse inference charge relating to the destruction of notes of his interview with the police; (3) file a motion to suppress evidence recovered from his residence pursuant to a search warrant that did not establish probable cause; and (4) participate in the structuring of the jury charges.

Defendant also argued that appellate counsel rendered ineffective assistance by failing to challenge the denial of his motion to suppress his statement to the police. Lastly, defendant argued that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.

In an August 5, 2014 oral opinion, the PCR court denied the petition without an evidentiary hearing. The PCR court found that trial counsel "tried her best to maintain the plea" and the court's ultimate rejection of the plea "was not because of any error of trial counsel." The PCR court concluded that the plea could not be accepted because defendant asserted actual innocence and involuntariness. The PCR court also found that defendant suffered no prejudice, as he was afforded, but declined, an opportunity to deny his claim of innocence and provide a re-allocution of the factual basis.

The PCR court found that because there was probable cause for issuance of the search warrant, trial counsel was not deficient in failing to file a motion to suppress evidence found in defendant's home. The PCR court also found that defendant was not entitled to an adverse inference charge regarding the alleged destruction of interview notes, and appellate counsel was not deficient, as the trial court's findings on the motion to suppress defendant's statement to the police were supported by sufficient credible evidence in the record. The PCR court determined that defendant's remaining claims of ineffective assistance of trial counsel were without merit.

On appeal, defendant raises the following contentions

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 AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITION FOR [PCR].

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL REGARDING THE DESTRUCTION OF INTERVIEW NOTES.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL BECAUSE COUNSEL FAILED TO EFFECTIVELY PRESERVE THE EARLIER PLEA ENTERED INTO BY THE DEFENDANT.

D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL BECAUSE COUNSEL FAILED TO PURSUE A VIABLE MOTION TO SUPPRESS.

E. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL BECAUSE COUNSEL FAILED TO ADEQUATELY ADDRESS THE JURY INSTRUCTIONS PROVIDED BY THE COURT.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE IMPOSITION OF A SENTENCE CONSISTING OF A LIFE TERM WITH A CONSECUTIVE TWENTY-YEAR TERM, ALL SUBJECT TO [EIGHTY-FIVE PERCENT] PAROLE INELIGIBILITY, IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT IV

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL AND APPELLATE PROCEEDINGS UNFAIR.

We have considered defendant's contentions in Points I, II and IV in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make these brief comments.

Assuming the police took notes of defendant's interview and destroyed them, defendant was not entitled to an adverse inference charge. State v. W.B., 205 N.J. 588 (2011), which required an adverse inference charge for the destruction of interview notes, was decided after defendant's conviction and applies prospectively only. State v. Dabas, 215 N.J. 114, 137-38 (2015).

Defendant claimed actual innocence before sentencing and maintained his innocence at trial. A court may not accept a guilty plea where, as here, a defendant maintains his innocence. State v. Taccetta, 200 N.J. 183, 195-97 (2009).

A motion to suppress evidence found in defendant's home, as well as an appellate challenge to the denial of defendant's motion to suppress his statement to the police, would have been unsuccessful. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).

Finally, except for trial counsel's failure to request an adverse inference charge, defendant does not specify what jury charges were omitted or improperly or incorrectly charged as a result of trial counsel's alleged deficiencies. Insofar as defendant challenges the intoxication and aggravated manslaughter charges, we addressed those charges on the merits in defendant's prior appeal and found no error. Sanchez, supra, No. A-4385-10 (slip op. at 12-13).

We decline to address defendant's contention in Point III regarding his sentence. Defendant could and should have raised all challenges to his sentence in his direct appeal. R. 3:22-4; State v. Afanador, 151 N.J. 41, 50 (1997). In addition, we considered defendant's sentence on the merits in his direct appeal and found no error. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Under NERA, "a sentence of life imprisonment shall be deemed to be 75 years." N.J.S.A. 2C:43-7.2(b).