STATE OF NEW JERSEY v. JOSE SANTOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1058-04T41058-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE SANTOS,

Defendant-Appellant.

________________________________

 

Submitted January 9, 2006 - Decided February 14, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-09-1980

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Jose Santos, appeals from an order of the Law Division entered on September 2, 2004, denying his petition for post-conviction relief (PCR), and his request for an evidentiary hearing. For reasons expressed, we affirm.

Tried to a jury, defendant was convicted of ten criminal charges, including those of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2), and first-degree armed robbery, N.J.S.A. 2C:15-1. On October 31, 1997, defendant was sentenced to an aggregate custodial term of life plus twenty years with forty years of parole ineligibility. He received a life sentence subject to thirty years of parole ineligibility on the murder conviction; a consecutive twenty-year term with ten years of parole ineligibility on the armed robbery conviction, together with concurrent terms on three other convictions. The remaining convictions were merged with the murder and robbery convictions. On January 14, 1998, defendant filed an appeal. We affirmed the judgment of conviction and the sentences imposed, except we directed that the sentence for the armed robbery conviction be modified, solely to delete the ten-year mandatory parole ineligibility provision. State v. Santos, No. A-2719-97T4 (App. Div. June 29, 1999). On October 26, 1999, the Court denied defendant's petition for certification. State v. Santos, 162 N.J. 198 (1999).

On October 28, 2002, defendant filed a pro se motion for post-conviction relief. On April 8, 2004, counsel for defendant filed a supplemental verified petition. On August 20, 2004, the matter was heard by Judge Connor, and denied without a plenary hearing. On September 2, 2004, a confirmatory order was entered, and defendant appealed. Because of the malfunctioning of audio recording equipment on August 20, 2004, Judge Connor re-heard argument on the petition on November 22, 2004, and again rendered a decision denying the petition without a plenary hearing. An order reconstructing the record was entered on the same date.

On appeal, defendant argues:

POINT I.

THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST[-]CONVICTION RELIEF BASED UPON THE ORAL ARGUMENTS AND IN THE ALTERNATIVE FOR DENYING THE MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.

A. THE APPELLANT'S STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED.

B. THE TRIAL COURT COMMITTED ERROR BY NOT CONDUCTING AN EVIDENTIARY HEARING TO DETERMINE THE APPELLANT'S CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO HIRE A FINGERPRINT EXPERT.

C. THE TRIAL COURT COMMITTED ERROR BY NOT CONDUCTING AN EVIDENTIARY HEARING TO DETERMINE THE APPELLANT'S CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTRIVE FOR FAILING TO INVESTIGATE AND CALL ALL PROVIDED WITNESSES.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TO INTERVIEW OR MOVE TO EXCUSE A JUROR FOR FALLING ASLEEP DURING THE TRIAL.

We have carefully considered the record and briefs concerning defendant's arguments, and we find them without sufficient merit to warrant discussion herein. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that the trial judge erred in denying his motion to suppress his out-of-court statement to police, contending that the statement was obtained in violation of his Miranda rights, and because the statement "was not made voluntarily, knowingly or intelligently." We conclude that defendant is procedurally barred from asserting the Miranda argument in a PCR proceeding because it is the same issue previously raised in defendant's direct appeal, and rejected by this court, Santos, supra, (slip op. at 4). See R. 3:22-5 providing: "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." Judge Connor properly determined that defendant was procedurally barred from rearguing the issue. State v. McQuaid, 147 N.J. 464, 484 (1997) ("'[A] prior adjudication on the merits ordinarily constitutes a procedural bar to reassertion of the same ground as a basis for post-conviction review.'" (quoting State v. Preciose, 129 N.J. 451, 476 (1992)) (alteration in original)).

We also conclude that defendant's argument that the out-of-court statement should have been excluded because it "was not made voluntarily, knowingly or intelligently" is likewise barred. See R. 3:22-4 providing that "[a]ny ground for relief not raised . . . in any appeal taken [from the conviction] is barred from assertion in a proceeding under this rule unless the count . . . finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding." The issue of the out-of-court statement is intertwined with the Miranda issue, and is premised on facts found in the trial record concerning the manner in which the statement was obtained by the police, all of which were previously reviewed and considered by this court. The failure to raise the issue directly in the prior appeal bars the defendant from asserting it in this PCR proceeding. State v. Murray, 315 N.J. Super. 535, 540 (App. Div. 1998), aff'd, 162 N.J. 240 (2000).

The balance of defendant's arguments concerns his allegations of ineffective assistance of trial counsel. R. 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Preciose, supra, 129 N.J. at 462. The decision of whether to conduct an evidentiary hearing on a PCR petition is discretionary with the trial court. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Often, however, a defendant's claim of ineffective assistance of counsel will "require an evidentiary hearing because the facts often lie outside the trial record[,] and because the attorney's testimony may be required." Preciose, supra, 129 N.J. at 462. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of- counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. Trial courts "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland and its tests have been adopted by New Jersey). For defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Generally, the second prong is more difficult than the first. Id. at 463.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 60-61, defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Adequate assistance of counsel is measured by a standard of "'reasonable competence.'" State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, supra, 105 N.J. at 53). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

 
We have reviewed each of the arguments concerning ineffective assistance of trial counsel, and are in complete accord with Judge Connor's findings that defendant failed to meet the test established by Strickland. The denial of the PCR petition is affirmed.

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

We note under Point I of defendant's brief that he raises an allegation of ineffective assistance of both trial and prior appellate counsel. The substance of defendant's arguments, however, only addresses issues concerning ineffective assistance of trial counsel.

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A-1058-04T4

February 14, 2006