STATE OF NEW JERSEY v. MARIANO COLLAZO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5914-03T45914-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIANO COLLAZO,

Defendant-Appellant.

___________________________________

 

Submitted October 6, 2005 - Decided February 10, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

734-82-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and on the

brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Natalie A. Schmid Drummond,

Deputy Attorney General, of counsel and on

the brief).

PER CURIAM

This is an appeal from the denial of defendant's sixth motion for post-conviction relief. After a jury trial on this Mercer County indictment, defendant was convicted in 1983 of first-degree murder, second-degree possession of a weapon for an unlawful purpose, and third-degree unlawful possession of a weapon. He received an aggregate sentence of life in prison with a twenty-five-year parole disqualifier. Defendant's conviction was affirmed on direct appeal. State v. Carrion-Collazo, No. A-4108-82T4 (App. Div. Jan. 24, 1986). Certification was denied. State v. Carrion-Collazo, 104 N.J. 405 (1986). Defendant's first post-conviction relief motion was granted by the Law Division, but we reversed the resulting order for a new trial and reinstated defendant's convictions and sentences. State v. Carrion-Collazo, 221 N.J. Super. 103, 114 (1987). Defendant's petition for certification was denied. State v. Carrion-Collazo, 110 N.J. 171 (1988). Each of defendant's subsequent PCR motions was denied.

On the return date of defendant's motion, while represented by counsel, defendant nonetheless was permitted to make an oral statement of his contentions. He complained that he was not provided with street clothes and appeared in his prison garb on the first day of trial, that prisoners were used as interpreters when he met with his trial lawyer, and that his attorney was ineffective. Defendant's claim of ineffective assistance of counsel was based on his contentions that despite defendant's refusal to consider a plea offer (based on his expressed belief that he was not guilty on the basis of self-defense), his lawyer told defendant that he had no self-defense defense and did not pursue that defense, that the lawyer also told defendant that he himself would not take the plea offer if he was in defendant's position, and that he received ineffective representation because he had no money.

The motion judge denied relief on the basis of both Rule 3:22-12, the five-year time bar, and Rule 3:22-5, barring arguments previously decided. On appeal, defendant presents these arguments:

POINT I

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A

TRIAL COUNSEL FAILED TO PROPERLY CONSULT WITH DEFENDANT ABOUT THE POSSIBILITY OF A PLEA AGREEMENT.

B

TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL FAVORABLE WITNESSES.

C

TRIAL COUNSEL FAILED TO ASSERT APPROPRIATE DEFENSES, INCLUDING SELF-DEFENSE.

D

TRIAL COUNSEL FAILED TO EMPLOY A SUITABLE INTERPRETER DURING CONSULTATIONS.

E

TRIAL COUNSEL FAILED TO INSIST THAT DEFENDANT BE SUPPLIED WITH CIVILIAN CLOTHING FOR TRIAL AND FAILED TO ESTABLISH A RECORD OF DEFENDANT'S WAIVER OF HIS RIGHT TO WEAR CIVILIAN CLOTHES.

F

CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE LOWER COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT TIME BARRED UNDER R. 3:22-12.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

Our review of the record and the briefs satisfies us that defendant's arguments are without merit and do not warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We therefore affirm, adding only these comments.

Ineffective assistance was alleged in defendant's previous post-conviction relief motions and rejected. If defendant now presents any specific contention that was not previously raised, it could have been, and thus is barred either by Rule 3:22-4 or Rule 3:22-5. In particular, with respect to the claim that counsel failed to investigate any eyewitnesses to the incident, defendant provided no specifics, such as the identification of any such witness. Similarly, with respect to the alleged failure of counsel to pursue the defense of self-defense, no specific evidence is presented.

Defendant cites the use of other prisoners as interpreters for his attorney consultations. Defendant contends he always maintained his innocence, and that poor interpretation prevented the lawyer from understanding him. Trial counsel admitted that he assumed defendant's guilt in preparing his strategy, and that he was not entirely satisfied with the interpretation. Nonetheless, despite five prior petitions for relief, and representation by counsel on this latest application (presumably with the availability of competent interpretation if still needed), defendant has presented no specific evidence or investigative reports that support the defense of self-defense to meet defendant's burden.

Finally, defendant cites trial counsel's failure to insist on civilian clothing, or to put defendant's waiver on the record. We addressed that argument in our published opinion reversing the order granting defendant's first motion for post-conviction relief. Carrion-Collazo, supra, 221 N.J. Super. 112-13. The Supreme Court denied certification in Carrion-Collazo, supra, 110 N.J. 171. The only non-barred issue this raises is whether subsequent decisions in State v. Artwell, 177 N.J. 526 (2003) (defense witness cannot be required to appear in restraints or prison garb), State v. Grant, 361 N.J. Super. 349 (App. Div. 2003) (indictment dismissed because defendant appeared before grand jury in shackles), or State v. Smith, 346 N.J. Super. 233 (App. Div. 2002) (neither defendant nor defense witness can be compelled to appear in shackles unless there has been a finding that a security threat outweighs the potential prejudice), should change the result. None of these cases has any direct application to defendant's trial. Moreover, we see no basis for retroactive application of any of these cases on collateral review, more than 20 years after the trial.

Defendant was entitled to an evidentiary hearing only if he proffered sufficient specific information, such as the results of a subsequent investigation of potential eyewitnesses who would support his self-defense theory. Defendant has presented entirely insufficient grounds for an evidentiary hearing. Moreover, the passage of time would significantly prejudice the State in meeting any such evidence.

 
Defendant also argues that the time bar should be relaxed under all three potential grounds: excusable neglect, injustice, and constitutional arguments. See R. 3:22-12; State v. Mitchell, 126 N.J. 565, 580-81 (1992). None of these grounds having been demonstrated, the time bar applies. Defendant also argues that the bar against raising a previously decided issue should be relaxed because his arguments are important. Again, justice would require a hearing based on evidence of inadequate attorney-client communication through poor interpretation if there also was credible evidence of an omitted justification defense. There being none, as stated above, no further relief is warranted.

Affirmed.

Defendant's second application for post-conviction relief was denied in 1991 and we affirmed the denial. State v. Carrion-Collazo, No. A-1144-91T5 (App. Div. Sept. 14, 1992). A petition for certification on A-1144-91T5 was denied. 130 N.J. 601 (1992). A subsequent appeal, allegedly filed as of right pursuant to Rule 2:2-1(a)(1), was dismissed. State v. Carrion-Collazo, 149 N.J. 403 (1997).

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A-5914-03T4

February 10, 2006