STATE OF NEW JERSEY v. ABDIEL F AVILA

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-2598-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent.

v.

ABDIEL F. AVILA,

Defendant-Appellant.

____________________________

November 17, 2016

Submitted October 25, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No. 06-10-3500.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Abdiel Avila appeals from an October 15, 2014 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with committing a series of sexual offenses against C.H.,1 beginning when she was thirteen years old and ending when she was fourteen. The trial evidence was described in detail in our opinion affirming defendant's conviction on direct appeal and need not be repeated here. State v. Avila, No. A-5729-08 (App. Div. April 18, 2011), certif. denied, 208 N.J. 368 (2011). In summary, defendant repeatedly raped the victim, and intimidated her into silence by threatening her that a fictional "Sisterhood" would harm her family if she told anyone about the assaults.

Defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was sentenced on June 25, 2009, to an aggregate term of ninety-five years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On his direct appeal, defendant raised the following issues

POINT I

THE COURT ERRED IN PERMITTING FRESH COMPLAINT TESTIMONY IN THIS CASE. ALTERNATIVELY, THE COURT ERRED IN PERMITTING THE INTRODUCTION OF EXCESSIVE DETAILS IN THE FRESH COMPLAINT TESTIMONY OF M.A.

POINT II

THE COURT FAILED TO INSTRUCT THE JURY THAT BEFORE CONSIDERING DEFENDANT'S ALLEGED OUT-OF-COURT STATEMENTS IT MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE AND THAT NON-MEMORIALIZED ORAL STATEMENTS MUST BE REGARDED WITH CAUTION. THIS ERROR WAS COMPOUNDED BY THE COURT'S REFUSAL TO INSTRUCT THE JURY WITH THE FALSE IN ONE / FALSE IN ALL CHARGE. THESE ERRORS SERVED TO DEPRIVE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. Amends. VI and XIV; N.J. CONST. (1947) Art. I, pars. 1, 9 and 10. (Partially Raised Below)

POINT III

THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S ALLOWANCE OF HIGHLY PREJUDICIAL BUT IRRELEVANT EVIDENCE.

POINT IV

INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Partially Raised Below)

POINT V

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, 1, 10.

POINT VII

THE IMPOSITION OF AN EXTENDED TERM OF LIFE WITH AN 85% PAROLE BAR, CONSECUTIVE TO A 20-YEAR NERA TERM OF IMPRISONMENT IS EXCESSIVE.

In a separate pro se supplemental brief, defendant raised the following issues2

POINT I

DEFENDANTS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, P[A]RAGRAPHS 1 AND 22, OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED WHEN THE STATE FAILED TO PROPERLY SEQUESTER THE ALLEGED VICTIM AND FURTHER DENIED THE DEFENSE TO DISQUALIFY HER AT TRIAL AND ALL OTHER WITNESSES, COURTS DENIAL TO THE DEFENSE ALLOW THE STATE'S USE OF THE INITIAL WRITINGS, STATEMENTS, RECORDS OF VITAL STATISTICS, STATES EXHIBITS BE ENTERED TO EVIDENCE, AND TESTIMONY OF THE ALLEGED VICTIM, AND OF ALL OTHER WITNESSES WHICH ALL WERE INADMISSIBLE AND FAILED TO BE RELIABLE TRUSTWORTHY, AND FAILED TO PROVE THE ELEMENTS OF THE OFFENSES.

POINT II

DEFENDANTS' DUE PROCESS RIGHTS AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED BY THE STATES' WITHHOLDING OF EVIDENCE, OMISSIONS OF THE FACTS AND MATERIAL FACTS, OF SUA SPONTE EVIDENCE AND TRUISM.

POINT III

DEFENDANT-APPELLANT'S RIGHTS WAS CONSTITUTIONALLY VIOLATED UNDER THE THIRTEENTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WHEN THE STATE LEGISLATURE ENCROACHED AND FAILED TO DEFINE THE "MAN" IN ANY OF THE STATUTES ADJUDICATED THE CONSTITUTIONALITY OF THE STATUTES ARE CHALLENGUED, ARE VAGUE AND HAVE A BROAD DEFINITION TO A 'PERSON' WHICH FAILED TO INCLUDE THE "MAN" THAT IS CURRENTLY IMPRISONED CONSTITUTING INTERNATIONAL HUMAN RIGHTS VIOLATIONS.

POINT IV

DEFENDANT'S' 'CONSTITUTIONAL RIGHTS GUARANTEED BY THE 4TH, 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE STATE OF NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN BOTH THE LOWER COURT FAILED TO ESTABLISH JURISDICTION ON THE RECORD, THEREBY CAUSING IMPRISONMENT TO BE FALSE AND UNCONSTITUTIONAL.

POINT V

DEFENDANTS GUARANTEED RIGHTS UNDER THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPHS 1, 6, 7, 8, 9, 10, OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO FATAL DEFECTS IN THE STATE GOVERNMENT'S CHARGING INSTRUMENTS.

POINT VI

DEFENDANT GUARANTEED RIGHTS UNDER THE IV AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPHS 1, 7, 8 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED WHEN THE STATE GOVERNMENT LACKED STATE LEGISLATIVE, TERRITORIAL OR ADMIRALTY JURISDICTION OVER THE LOCUS QUO.

POINT VII

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 AND 6 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO THE JURY'S VERDICT WAS A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT VIII

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO SENTENCING DISPARITIES.

POINT [IX]

DEFENDANT-APPELLANT RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, PARAGRAPHS 1 OF THE NEW JERSEY CONSTITUTION WHERE VIOLATED DUE TO SENTENCING IMPROPER IMPOSITION OF EXTENDED TERM AND ENHANCED SENTENCE.

We rejected all of defendant's pro se and counseled appellate arguments, and we affirmed his conviction and the sentence.

Defendant first filed a PCR petition on July 6, 2009.3 Thereafter, he refiled the petition and filed a series of amended petitions, the most recent of which was filed on or about May 2014. However, as noted by the PCR judge, defendant continued to submit additional materials up to October 8, 2014.

On October 15, 2014, following oral argument,4 Judge Michele M. Fox issued a lengthy and thorough oral opinion considering and rejecting all of defendant's counseled and pro se PCR claims. After exhaustively reviewing defendant's pro se PCR arguments, she found that most of the claims were barred by Rule 3:22-4, because they could have been raised on his direct appeal.

The judge next rejected defendant's claim that his trial counsel was ineffective in cross-examining the victim. She observed that trial counsel had cross-examined the victim on critical issues, including her failure to report the alleged assaults. The judge found that defendant had not suggested anything specific that counsel could have done to conduct a more effective cross-examination.

Distinguishing State v. Jones, 219 N.J. 298 (2014), Judge Fox also found that defendant failed to produce an affidavit or other legally competent evidence that the victim's mother, if called as a trial witness, would have provided an alibi or other exculpatory testimony. The judge reached the same conclusion with respect to defendant's argument that his trial counsel should have called as a witness Dr. Marita Lind, who examined C.H. two weeks after she reported the assaults. Defendant provided no evidence that Dr. Lind could or would have testified that defendant was "not the source of any sexual contact with C.H."

The judge also considered and rejected most of defendant's multiple, additional contentions as unsupported by legally competent evidence or other required documentation. She found no merit in his claim that the sentence was illegal. Judge Fox denied the PCR without an evidentiary hearing, because defendant failed to present a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 463-64 (1992).

On this appeal, defendant raises the following argument through counsel

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO INVESTIGATE AND CALL APPROPRIATE WITNESSES.

In a supplemental pro se brief, defendant presents these additional points of argument

POINT I: PETITIONER HAS EXHAUSTED HIS REMEDIES IN ALL PRIOR COURTS AND FILED WITHIN THE LIMITATION PERIOD. AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO ALL "EXHIBITS" PRESENTED AS EVIDENCE THAT SUPPORT THE STATEMENTS IN ALL GROUNDS OF THE DEFENDANT'S SECOND AMENDED PETITION FOR POST-CONVICTION RELIEF. (Raised Below)

A. Jurisdiction and Venue

B. The second Amended Petition For Post-conviction Relief should not be Barred by immaterial procedural considerations since the Petition was refiled on 11/30/2011 after completion of Petition For Certification, deemed as 1st Petition

POINT II: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, FOR FAILING TO OBTAIN ACQUITAL OF DEFENDANT DUE TO LACK OF PROOF BEYOND REASONABLE DOUBT. THE VERDICT SHEET DID NOT HAVE THE LANGUAGE OF THE CHARGES GIVEN, NOR WAS IT ENTERED INTO EVIDENCE AS AN EXHIBIT AS REQUIRED BY R. 3:19-1(B). DEFENDANT RAISES "ACTUAL INNOCENCE". THE CONVICTION VIOLATED DEFENDANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS, GUARANTEED BY U.S. CONST. AMEND. XIV; AND HIS RIGHT TO "DEFEND LIFE AND LIBERTY" GUARANTEED BY N.J. CONST. ART I, PAR. 1 (Raised Below)

A. The Jury misapplied the Reasonable Doubt Standard, the trial has been infected with structural defects. The Verdict Sheet does not reflect the jury charges given as such cannot stand. The Verdict sheet was not placed into evidence as an exhibit as required by R. 3:19-1(b)

B. The Jury Verdict is inconsistent to the evidence and fails to have sufficient evidential basis for the charges

C. The State failed to prove each element of the offenses, no reliable evidence was "produced" to prove its case on each element beyond reasonable doubt, renders the conviction to be void, and requires that defendant be acquitted and released

POINT III: INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL, CONVICTION IMPOSED IS ILLEGAL

SENTENCE AS SUCH ACCORD AND SATISFACTION OF THE JUDGMENT, HAVING DEFENDANT BEEN ONLY ELIGIBLE FOR A MANDATORY SENTENCE UNDER THE GRAVES ACT. THE CONVICTION VIOLATED DEFENDANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS, GUARANTEED BY U.S. CONST. AMEND. XIV; AND HIS RIGHT TO "DEFEND LIFE AND LIBERTY" GUARANTEED BY N.J. CONST. ART. I, PAR. 1 (Raised Below)

A. The Court never obtained the "consent" of the defendant to impose any sentence the imposition of the sentence for a statutory maximum was not based on the facts found by the jury; the motion for extended term was filed out of time

B. Defendant's Sentence is an Expired Sentence under the Graves Act

C. Fines and penalties imposed are an illegal sentence Having failed to provide Defendant due process, by not scheduling a hearing as to his ability to pay requires revocation

POINT IV: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DEFENDANT INCORPORATES, BY ADOPTING BY REFERENCE ALL ARGUMENTS ADVANCED ON PLENARY, SUPPLEMENTAL, AND REPLY BRIEFS ON DIRECT APPEAL DOCKET NO. A-5729-08T4, WHICH HAVE CAUSED "DEPRIVATION" IN THE PURVIEW OF N.J.S.A. 10:6-2 ET SEQ., DUE TO VIOLATION OF DEFENDANT'S SEVERAL CONSTITUTIONAL RIGHTS. THE APPELLATE COURT DID NOT ADJUDICATE I.E. RULE "POINT FOR POINT" UPON THE MERITS THEREFORE THERE IS NO BAR UNDER R. 3:22-4 ET SEQ.

POINT V: THIS SECOND AMENDED PETITION BE GRANTED DUE TO THE CUMMULATIVE EFFECT OF VARIOUS ERRORS WHICH RESULTED IN AN UNFAIR AND UNRELIABLE SENTENCE IN THIS MATTER DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, THAT DEPRIVED DEFENDANT'S RIGHTS (Raised Below)

POINT VI: DEFENDANT HAS SATISFIED THE TWO PRONG STRICKLAND TEST OF BEING EXPOSED TO "PREJUDICE" AND "DEFICIENT" PERFORMANCE OF COUNSEL, SINCE THE FAILURE OF COUNSEL TO REQUIRE ADVERSARIAL TESTING IS EVIDENT. DEFENDANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL SINCE THE PRE-TRIAL, TRIAL AND SENTENCING PHASES WHICH HAVE VIOLATED

DEFENDANT'S GUARANTEED RIGHTS UNDER U.S. CONST. AMEND. VI & XIV; N.J. CONST. ART. I, PARS. 1 & 10 (Raised Below)

POINT VII: DEFENDANT'S CLAIM OF ACTUAL INNOCENCE, INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS; ILLEGAL SENTENCE, CHALLENGES TO THE INDICTMENT, SENTENCE, FRESH COMPLAINT AND OTHER EVIDENTIARY RULINGS BY THE TRIAL COURT, AND JURISDICTION ARE NOT PROCEDURALLY BARRED UNDER RULE 3:22-5 BECAUSE DEFENDANT DID MOVE TO "DISPENSE" THE RULE; AND ASSERTED EQUITABLE TOLLING WITHIN THE SECOND AMENDED PETITION REQUIRES EVIDENTIARY HEARING BE HELD ON THE
"ISSUES" AND EXHIBITS OF RECORD. (Raised Below)

POINT VIII: TRIAL COUNSEL FAILED TO DO ANY INVESTIGATIONS PRIOR TO TRIAL AND AS A RESULT FAILED TO CALL FAVORABLE WITNESSES AND FAILING TO DO ADEQUATE INVESTIGATIONS, AS SUCH AS DEMONSTRATED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AS SUCH EVIDENTIARY HEARING SHOULD BE GRANTED ON THE ISSUES (Raised Below)

POINT [IX]: DEFENDANT'S SECOND AMENDED PETITION AND ARGUMENTS ADVANCED ON PLENARY PRO SE BRIEF, SUPPORTING EACH GROUND STAND UNOPPOSED, DUE TO LACK OF PROSECUTION AND FAILURE TO FILE A BRIEF RESPONDING TO THE PRO SE BRIEF. EVIDENTIARY HEARING SHOULD BE GRANTED ON THE ISSUES, AND A RULING TO RETURN VACATING ALL SENTENCES, ENTRY OF DEFAULT JUDGMENT; AND ENTRY OF JUDGMENT OF ACQUITTAL (Raised Below)

POINT X: MOTION FOR RECONSIDERATION SHOULD BE GRANTED TO PROCEED WITH EVIDENTIARY HEARING (Raised Below)

A. Evidentiary hearing is warranted

B. Actual Innocence

C. Illegal Sentence

D. Ineffective Assistance of Counsel

POINT XI: MOTION FOR ENTRY OF JUDGMENT (Raised Below)

A. PCR Counsel abandoned his continued duty

to represent defendant on 2/9/15, there

is an absence of any showing of good cause, without any motion to withdraw of counsel. The PCR judge on 2/9/15 allowed defendant to proceed pro se, without holding a 'search inquiry'

B. Ineffective assistance of PCR Counsel

Through counsel, defendant once again argues that his trial attorney was ineffective for failing to interview additional witnesses and present their trial testimony. Those are "bald assertions," unsupported by legally competent evidence. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Judge Fox properly rejected those contentions without an evidentiary hearing, and they do not warrant further discussion here. R. 2:11-3(e)(2); Preciose, supra, 129 N.J. at 463-64.

Defendant's pro se arguments concerning his PCR petition were properly addressed in Judge Fox's opinion and are without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). To the extent that defendant seeks to re-argue issues that were or could have been raised on his direct appeal, those arguments are barred by Rule 3:22-4 and Rule 3:22-5.

After the petition was denied, defendant filed a pro se motion for reconsideration which the judge denied by order dated February 9, 2015. Judge Fox explained her reasons for denying the motion in a thorough oral opinion of the same date. We find no abuse of the judge's discretion in denying the motion. See State v. Puryear, 441 N.J. Super. 280, 293-94 (App. Div. 2015). Defendant's arguments concerning the merits of the reconsideration motion are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Lastly, in an argument to which the State did not respond, defendant contends that the PCR court should have appointed counsel to represent him on the reconsideration motion. Clearly, there may be situations where it is appropriate for PCR counsel to file a reconsideration motion on a defendant's behalf. See State v. Allegro, 193 N.J. 352, 356 (2008). However, none of the cases defendant cites stand for the proposition that a defendant has an unqualified right to court-appointed representation for the purpose of filing a motion for reconsideration of the denial of a PCR petition, regardless of the merits of the proposed motion.

However, defendant has not provided us with the pertinent record from the PCR court concerning this issue, including his attorney's correspondence with the PCR court about the motion, and Judge Fox's statement of reasons for declining to appoint counsel. Given the lack of a proper record for appellate review, we decline to address the issue further.

Affirmed.

1 We use initials to protect the victim's identity.

2 Except as noted in parenthetical corrections, we have quoted defendant's point headings as they appeared in his brief.

3 According to the PCR judge's opinion, the 2009 petition was dismissed without prejudice on August 26, 2009, due to the pending direct appeal. There is no dispute that the current petition, filed in 2011 and amended thereafter, was timely and was properly treated as a first PCR petition.

4 Defendant was represented by counsel at the PCR hearing. However, after hearing arguments presented by PCR counsel, the judge also permitted defendant to address the court with additional arguments.