STATE OF NEW JERSEY v. KEVIN PAGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6660-04T26660-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN PAGAN,

Defendant-Appellant.

_______________________________________

 

Argued March 14, 2007 - Decided August 3, 2007

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, S-1462-99.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief).

John J. Scaliti, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Scaliti, of counsel and on the brief).

PER CURIAM

Defendant, Kevin Pagan, appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). On November 16, 2000, Judge Timothy R. Sullivan, the trial judge, imposed a ten-year term with a NERA parole disqualifier. We affirmed. State v. Pagan, No. A-2311-00T3 (App. Div. November 18, 2002), certif. denied, 178 N.J. 30 (2003).

The facts surrounding the crime are detailed in our opinion on direct appeal. These are the salient facts. On November 7, 1998, defendant, a Ramapo College student, was at his parents' house in Oradell. His parents were not at home when three friends, including Goh Nishiyama, came to visit. After drinking a twelve-pack of Heineken beer, defendant, Nishiyama and a third young man went to the Garden Tavern in New York City at approximately 12:30 a.m. At the tavern, the three men consumed beer and hard liquor.

At around 5:00 a.m., after eating something outside the tavern, defendant and Nishiyama returned home. Defendant drove Nishiyama in his car. On the Henry Hudson Parkway, defendant's vehicle and another vehicle had a minor fender-bender. The other vehicle left the scene. Defendant continued driving home. While driving north on Bogart Road in River Edge, defendant was cut off by the victim's van. Defendant honked his horn at the driver, Fadi Awad. Defendant followed Awad's van onto Windsor Road. When the van stopped, defendant parked his car in the middle of the street next to it. Nishiyama, who had been sleeping since the car went over the George Washington Bridge, awoke and heard shouting between Awad and defendant. Nishiyama testified that he had no idea who Awad was.

Awad got out of the van and walked around to the driver's side window where defendant was sitting and they continued their verbal argument. Awad started to walk away when defendant got out of the car and followed him. When Awad grabbed defendant's wrist, defendant pulled away and punched Awad in the face.

Defendant and Awad became interlocked. Nishiyama got out of the car, approached the two men and punched Awad in the left side of his head. Awad and Nishiyama became interlocked and were grappling.

A neighbor saw Awad along with two other men "scuffling." Defendant grabbed Awad, and holding his arms, directed Nishiyama to hit Awad. Nishiyama swung at Awad, missed and hit defendant in the eye. Nishiyama and Awad started grappling again and fell onto the grass together. Nishiyama got up and kicked Awad in the head once. Awad started crawling away on all fours towards a nearby house. Nishiyama kicked Awad two or three times in the torso area.

Other neighbors testified that around 5:15 a.m., they heard Awad moaning, yelling for help and asking for someone to call 9-1-1. A neighbor called 9-1-1.

Nishiyama started back towards the car because he believed Awad was now making a scene and wanted to leave the fight so as to get away before the police arrived. Defendant continued to kick Awad. Nishiyama got into the car, expecting defendant to be following him. However, defendant was still kicking Awad. Nishiyama yelled at defendant to come to the car so that they could leave. Nishiyama got out of the car, walked over to defendant and grabbed him by the jacket to try to get him to return to the car. Nishiyama saw defendant stomping on Awad's head with his feet. Awad was motionless and completely silent.

Following his conviction and direct appeal, defendant filed a PCR petition pro se. Subsequently, present counsel assisted in the preparation of a supporting certification by Eileen Pagan, defendant's mother. The certification alleged ineffective assistance by trial counsel. Judge Donald R. Venezia denied the petition.

On appeal, defendant contends:

DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE THE SENTENCING COURT INCORRECTLY APPLIED THE NO EARLY RELEASE ACT ENHANCEMENT TO THIS CASE ALTHOUGH THERE WAS NO FINDING BY THE JURY BEYOND A REASONABLE DOUBT THAT DEFENDANT CAUSED SERIOUS BODILY INJURIES RATHER THAN ATTEMPTED TO CAUSE SERIOUS BODILY INJURIES.

We disagree.

This argument is substantially similar to the argument raised on direct appeal. It is well settled law that PCR is not a substitute for a direct appeal, nor is it a basis to re-litigate claims already adjudicated. R. 3:22-3; R. 3:22-5. Moreover, "preclusion of consideration of an argument presented in PCR proceedings should be effected only if the issue is identical or substantially equivalent to that issue previously adjudicated on its merits." State v. McQuaid, 147 N.J. 464, 484 (1997) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971)) (internal citations omitted). Thus, we decline to address this issue yet again. State v. Johnson, 43 N.J. 572 (1965), aff'd by, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Accordingly, we reject this contention on procedural grounds.

Nonetheless, the argument on the merits is similarly unpersuasive. The 1997 NERA version requires the following predicates to be proven beyond a reasonable doubt: that the actor caused death; or serious bodily injury; or used or threatened the immediate use of a deadly weapon. N.J.S.A. 2C:43-7.2 (1997). As we said on direct appeal, the serious bodily injury was implicitly found by the jury when it returned its verdict. There we held:

[T]he only conceivable conclusion that the jury could have reached in finding defendant guilty of second degree assault was that defendant assaulted the victim, either as a principal or as Nishiyama's accomplice. Accordingly, notwithstanding the fact that the trial court failed to specifically instruct the jury to find the NERA violent crime predicate, we affirm the NERA sentence because the facts adduced at trial established that the jury made the finding beyond a reasonable doubt.

[State v. Kevin Pagan, No. A-2311-00T3, (App. Div. Nov. 18, 2002) (slip op. at 12); State v. Johnson, 166 N.J. 523, 545-46 (2001).]

Defendant also contends:

DEFENDANT'S SENTENCE SHOULD BE VACATED AND REMANDED FOR RE-SENTENCING PURSUANT TO THE DECISION IN STATE V. NATALE.

We disagree.

As the State points out, defendant is not entitled to Natale's pipeline retroactivity, because defendant's claim on direct appeal was a challenge to the imposition of a NERA parole disqualifier, not to the quantum of the base term. In short, defendant did not raise a true Blakely argument on direct appeal.

Beginning with the Apprendi decision, the United States Supreme Court's Sixth Amendment jurisprudence has brought about changes in the sentencing procedures in New Jersey. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty . . . beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455; State v. Franklin, 184 N.J. 516, 521 (2005). Later, in Blakely v. Washington, the Court provided a clear definition of the term "statutory maximum." Blakely, supra, 542 U.S. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 413. It is defined as, for Apprendi purposes, "the maximum sentence a judge may impose solely on the basis of the facts in the jury verdict or admitted by the defendant." Blakely, supra, 542 U.S. at 303, 124 S. Ct. at 2537, 159 L. Ed. 2d at 413. Simply put, it is the sentence the judge may impose without any additional findings. Ibid. Anything above the statutory maximum based on judicial fact finding was found to be a violation of the Sixth Amendment. Blakely, supra, 542 U.S. at 303-04, 124 S. Ct. at 2538, 159 L. Ed. 2d at 414.

Because our presumptive terms were deemed to be the maximum sentence for Blakely purposes, our Supreme Court in State v. Natale, 184 N.J. 458, 484 (2005) held that, "the Code's system of presumptive term sentencing violates the [defendant's] Sixth Amendment[] right to trial by jury." Ibid. Natale eliminated the presumptive terms, rendering the statutory maximum the top of the range for the crime charged. Id. at 487; State v. Pierce, 188 N.J. 155, 170 (2006). This elimination of the presumptive term, was to have pipeline retroactive effect for pending appeals. Natale, supra, 184 N.J. at 494-95. This "pipeline retroactivity" as extended to "defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal--best balances principles of fairness and repose." Id. at 494; Franklin, supra, 184 N.J. at 540.

Here, defendant asserts that his appeal is within the Natale "pipeline" because he "essentially" raised a Blakely claim on direct appeal. Defendant argued in his direct appeal brief that based on Apprendi, "questions of fact, other than prior convictions, that increase the penalty for a crime beyond the statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt."

Despite this language, we are satisfied that on direct appeal defendant challenged the NERA parole disqualifier, not the base term. State v. Abdullah, 184 N.J. 497, 510 (2005); see State v. Thomas, 392 N.J. Super. 169, 187 (App. Div. 2007) (finding that both Apprendi and Blakely "are not implicated when a statutory minimum, such as a mandatory period of parole ineligibility, is imposed."). Moreover, there is a difference from "essentially" making a Blakely argument, and actually making one. Therefore, we must reject this contention.

Defendant also contends:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S POST-CONVICTION RELIEF APPLICATION ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Defense Counsel Failed To Challenge The Testimony Of The State's Witness, Dr. Jonathan Fellus.

B. Defense Counsel Failed To Take The Opportunity To Contradict The State's Medical Witness, Dr. Kathleen O'Hara.

C. Defense Counsel Failed To Call Any Medical Experts or Treating Nurses To Contradict The Medical Conclusion.

D. Defense Counsel Failed To Cross-Examine Rita Awad, The State's Principal Witness.

We disagree.

The law outlining the standard for establishing a prima facie case for ineffective assistance of counsel is well settled. A two-part test must be complied with in order to reverse a conviction based on ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 687 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). First, counsel is presumed to have made all significant decisions in the "exercise of reasonable professional judgment" and therefore the defendant must show that counsel's performance was so deficient such that attorney "was not functioning as the 'counsel' guaranteed [] by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-90, 104 S. Ct. at 2064-66, 80 L. Ed. 2d at 693-96 (1984); State v. Castagna, 187 N.J. 293, 314 (2006). Specifically, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Furthermore, there is no specific set of legitimate decisions that trial counsel can make to best defend a client in a certain set of circumstances. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. Such a limitation on adequate decisions would interfere with counsel's latitude in making tactical decisions on behalf of the client. Ibid.

Further, counsel is obligated to make a reasonable investigation. State v. Martini, 160 N.J. 248, 266 (1999) (citing Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Any strategic decision made after a thorough investigation is "virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Arthur, 184 N.J. 307, 342 (2005). Also, counsel's effectiveness must be assessed based on the totality of circumstances taking into consideration the evidence that the state puts forth regarding the guilt of the defendant. State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, Marshall v. New Jersey, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

Second, even if the defendant can show that the counsel's error was professionally unreasonable, he must then show that counsel's deficient performance had a prejudicial effect on the defense. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696; State v. Chew, 179 N.J. 186, 203-04 (2004). In other words, even if a professionally unreasonable mistake is found and proven, a judgment should not be set aside if that mistake had no effect on the outcome of the case. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696.

The second prong of Strickland requires that defendant show a "reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Martini, supra, 160 N.J. at 264. The Strickland two-prong test was adopted by our Supreme Court with only a slight modification. State v. Fritz, 105 N.J. 42, 58 (1987). The Court in Fritz held that there must be a "reasonable probability that these deficiencies materially contributed to the defendant's conviction." Ibid.; State v. Ellis, 299 N.J. Super. 400, 453 (App. Div.), certif. denied, 151 N.J. 74 (1997).

The general rule is that courts will not question counsel's trial strategy. The U.S. Supreme Court in Strickland held that evaluation of the performance of the trial counsel must be extremely deferential because it is too easy "to conclude that a particular act or omission of counsel was unreasonable" with the benefit of hindsight. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Loftin, supra, 191 N.J. at 198; State v. Norman, 151 N.J. 5, 37 (1997).

In reviewing these contentions against the trial record, it is patently obvious that this case did not turn on the medical testimony. Even if trial counsel had cross-examined the physicians or called his own expert, the medical evidence overwhelmingly showed that Awad suffered serious bodily injury. It is very unlikely that even the most experienced counsel would have been able to show that the injuries were merely "bodily injuries" which might have resulted in a third degree conviction. The definition of "bodily injury" means "physical pain, illness, or any impairment of physical condition." N.J.S.A. 2C:11-1a. It is undisputed that Awad suffered irreversible and permanent damage. It is irrelevant that he was in a coma for a week rather than a month. To have cross-examined the medical experts, who were essentially neutral witnesses on this quibble, might have caused a reaction from the jury. Trial counsel was correct in concentrating on other areas that might have brought about a different result.

The same analysis applies to the cross-examination of Awad's wife. An aggressive cross-examination would have endangered more sympathy for the witness.

Finally, defendant contends:

THE PCR COURT ERRED IN RULING THAT DEFENSE COUNSEL'S FAILURE TO APPRISE THE SENTENCING COURT OF THE CIRCUMSTANCES OF THE ALLEGED PRIOR ASSAULTS LISTED IN HIS PRESENTENCE REPORT WAS NOT PREJUDICIAL.

Defendant argues that trial counsel did not explain to the judge about the circumstances of his prior assaults nor of their minor nature. Defendant argued that but for trial counsel's failure to explain his prior assaults, the sentencing judge would not have determined that he posed a risk to re-offend.

Judge Venezia found that regardless of trial counsel's alleged failure to clarify defendant's history, it would not have changed the outcome. Judge Venezia stated:

Judge Sullivan decided that the background of this defendant would be taken into consideration and whether you want to go down the line and make an argument or an excuse or whatever you want to call it for whatever the defendant's background was which led to his juvenile record, the fact remains that there was assaultive behavior in his background and whether it's explainable or not [ ], it's assaultive and the judge can take that into consideration. . . .

We conclude that his finding is supported by the record. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 471 (1999).

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant is subject to the 1997 version of NERA because the assault for which he was convicted occurred in 1998. Pagan was sentenced in 2000.

184 N.J. 458 (2005).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), reh'g denied by, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004).

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2346, 2362-63, 147 L. Ed. 2d 435, 455 (2000).

(continued)

(continued)

14

A-6660-04T2

 

August 3, 2007