STATE OF NEW JERSEY v. IRVIN SANDI-SOTO

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IRVIN SANDI-SOTO, a/k/a

IRVIN SOTO,

Defendant-Appellant.

November 9, 2016

Submitted October 19, 2016 Decided

Before Judges Fuentes and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-07-0684.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

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

A jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6) (counts two and four); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven).1 The trial judge merged count four with count two and sentenced defendant as follows: a twenty-two-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; a consecutive fifteen-year term of imprisonment subject to NERA on count two; a concurrent seven-year prison term subject to NERA on count five; a concurrent four-year prison term on count six; and a concurrent nine-month prison term on count seven. The judge also imposed the appropriate fines and penalties, and ordered defendant to pay restitution in the amount of $9124.24.

We affirmed defendant's convictions on direct appeal, but remanded for merger of his conviction for possession of a weapon for an unlawful purpose with his conviction for aggravated sexual assault, and for a restitution hearing. State v. Sandi-Soto, No. A-4597-10 (App. Div. July 19, 2012). On remand, the trial judge merged count six with count two, which did not affect defendant's aggregate sentence of thirty-seven years imprisonment subject to NERA. The judge also conducted a restitution hearing and determined that defendant had the ability to pay the amount previously ordered. The Supreme Court thereafter denied certification. State v. Sandi-Soto, 213 N.J. 46 (2013). The facts underlying defendant's convictions are set forth in our earlier opinion and need not be repeated here.

On July 12, 2013, defendant filed a PCR petition in which he contended he was denied the effective assistance of trial counsel. With the assistance of later appointed PCR counsel, defendant argued that trial counsel was ineffective for failing to: (1) call witnesses who could attest to the interaction between himself and the victim at the bar they were at on the evening in question; (2) advise defendant of his rights pursuant to Article 36 of the Vienna Convention; (3) move for a change of venue; and (4) challenge the court's jury charge concerning his confession. Defendant also asserted that trial counsel misrepresented the strength of the State's case and dissuaded him from accepting a favorable plea bargain.

Judge Robert C. Billmeier, who was also the trial judge, denied defendant's petition by order dated March 18, 2015. The judge issued a comprehensive twenty-four page written decision on the same date setting forth his findings and reasons for denying defendant any relief. Pertinent to the issues that defendant renews on appeal, the judge noted that defendant failed to support his petition with any affidavits from the two witnesses setting forth their proposed testimony regarding the interaction between defendant and the victim at the bar. The judge also found that defendant's statement would not have been suppressed merely because he may not have been advised of his rights under Article 36 of the Vienna Convention. Finally, the judge found that a change of venue was not warranted because none of the fourteen jurors, who were questioned individually, indicated they had read any newspaper articles about the case, and they were further instructed not to read any media reports about the case while the trial was proceeding.

Judge Billmeier concluded that because defendant did not establish a prima facie showing of ineffective assistance of counsel, no evidentiary hearing was required. This appeal followed, in which defendant presents the following issues for our consideration

POINT I

THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Finding no merit in these arguments, we affirm.

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, 58 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both 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 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. State v. Preciose, 129 N.J. 451, 462-63 (1992). It follows that a "defendant must allege specific facts and evidence supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of effective assistance of trial counsel within the Strickland-Fritz test, substantially for the reasons stated by Judge Billmeier in his thorough written opinion. Accordingly, the judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The jury found defendant not guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (count three).