STATE OF NEW JERSEY v. JAVIER VELARDO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0427-06T40427-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAVIER VELARDO,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-05-0557.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Javier Velardo appeals from a March 29, 2006 order that denied his first petition for post-conviction relief (PCR). We affirm.

I.

Following a trial by jury, defendant was convicted on September 14, 2001, of sexually assaulting his girlfriend's two daughters. In particular, the jury convicted defendant of aggravated sexual assault on S.T.C. by engaging in acts of sexual penetration when she was thirteen years old. The jury also convicted him of second-degree sexual assault upon S.T.C.'s younger sister, S.C., by engaging in acts of sexual contact with her when she was less than thirteen years of age. Because defendant's PCR claims relating to the trial focus only upon hearsay testimony of the older child, S.T.C., we confine our discussion of the trial testimony accordingly.

At trial, the State claimed that while S.T.C.'s mother was out of the house taking English classes or working at a bar, defendant stayed home with S.T.C. and her sister. The State alleged that on many of those occasions, defendant engaged in vaginal, anal and oral intercourse with S.T.C.

Trial testimony established that S.T.C. moved out of the apartment defendant and her mother shared. At the time, S.T.C. attributed her decision to move out to bickering with defendant. She did not tell her mother the true reason, which was defendant's sexual conduct with her. When she left her mother's apartment, S.T.C. moved to the apartment of Sandra Ibanez, a close family friend. While staying with Ibanez, S.T.C. became friendly with Maria Barra, an eighteen-year old woman who lived in a separate apartment in Ibanez's house. After a few weeks, S.T.C.'s mother attempted to persuade her to return home. It was at that time that S.T.C. told Barra that she did not want to return to her mother's home because she had been touched in her private area by defendant. She did not tell Barra that defendant had engaged in intercourse with her.

In our opinion on direct appeal, we summarized the differing accounts S.T.C. provided to various people. We quote from that opinion:

After Barra brought S.T.C.'s complaint to the attention of the Division of Youth and Family Services (DYFS), S.T.C. did not repeat her complaint and instead told DYFS caseworkers that defendant "passed her and hit her on the butt," and that she was staying with Ibanez only because she was not getting along with defendant. She did not tell DYFS any sexual touching occurred.

Later, S.T.C. told Ibanez she did not want to return home because defendant had inappropriately touched her. S.T.C. also told the police that "her stepfather had been touching and fondling her while she was living at his apartment."

The police wanted S.T.C. to be seen by a doctor. On the way to the hospital, for the first time, S.T.C. admitted being penetrated by defendant. She told Barra and Ibanez that she was not a virgin because she had intercourse with defendant. S.T.C. cried and disclosed that defendant "had raped her from the front, that he raped her from the back, and that he had made her swallow a liquid." Barra and Ibanez told the police of S.T.C.'s statement.

[State v. Velardo, No. A-1144-01 (App. Div. June 26, 2003) (slip op. at 3-4).]

At trial, the State presented the testimony of Ibanez and Barra under the fresh-complaint exception to the hearsay rule. See State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.) certif. denied, 151 N.J. 466 (1997). The State also presented testimony of the emergency room doctor and two police officers, all of whom were permitted to testify that they were told by S.T.C. that defendant had intercourse with her.

On appeal, defendant argued that "the prosecutor caused prejudice by admitting far too much detail than is normally permitted to establish fresh-complaint." He also argued that "the testimony of the five fresh-complaint witnesses constituted improper repetitive corroboration." We rejected those claims, principally because defendant "invited" the repetitive and overly detailed testimony. We held that "[i]t was in these very details of what S.T.C. had said to the parties that defense counsel attempted to show inconsistency. Counsel aggressively cross-examined the State's witnesses and highlighted any inconsistencies in S.T.C.'s disclosures in an effort to completely discredit S.T.C.'s accusations." We described defendant's explicit statement that he would not object to any of these statements:

While defendant now contends that the statements were too detailed, defendant did not object to any of these statements. In fact, he formally announced no objection to the admissibility of fresh-complaint testimony of Ibanez. Defendant made a tactical decision in deciding not to object. He stated that "in my opinion, [Ibanez] helps . . . . She gives us inconsistency how these allegations evolve." Thus, if there were error in allowing too much detail in Ibanez's statement and other statements to which defendant did not interpose any objection, defendant acquiesced in their development.

[State v. Velardo, supra, slip op. at 11.]

Ultimately, we concluded that only the testimony of Ibanez and Barra properly constituted fresh-complaint evidence. Id. at 12. We concluded that "[t]heir testimony was quite sufficient to negate any inference that S.T.C.'s silence was inconsistent with a claim of sexual abuse," but "[t]he testimony by the police officers was duplicative and unnecessary." Ibid. We also concluded the doctor's testimony that S.T.C. told him defendant had intercourse with her was inadmissible as medical diagnosis or fresh-complaint. Id. at 13.

Ultimately, however, because of the absence of any objection by defendant, we held that the repetitive and inadmissible fresh-complaint evidence was unlikely to have tipped the scales unfairly against defendant. Id. at 14. We reached that conclusion in light of defendant's expressed consent to the hearsay testimony from Ibanez, ibid., the circumstantial corroboration of S.T.C.'s complaints, id. at 13, and defense counsel's aggressive cross-examination of the State's witnesses that highlighted the inconsistencies in S.T.C.'s disclosures. Id. at 14. For those reasons, we concluded the error was not clearly capable of producing an unjust result and affirmed defendant's conviction. Ibid.

On January 26, 2005, defendant filed the petition for post-conviction relief that is the subject of this appeal. Although phrased under numerous point headings, defendant raised a single claim before the Law Division: trial counsel and appellate counsel provided ineffective assistance because they failed to challenge the eighteen-year sentence, which exceeded the then-existing presumptive term of fifteen years. Specifically, defendant argued that trial and appellate counsel should have anticipated that the New Jersey Supreme Court would--as it ultimately did in State v. Natale, 184 N.J. 458, 487-88 (2005)--invalidate the statutory presumptive term in the New Jersey sentencing scheme. He argued that in light of the United States Supreme Court's opinions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), trial and appellate counsel should have anticipated the Natale decision that was rendered in 2005.

In making that argument, defendant conceded that at the time of his sentencing and direct appeal, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), had not yet been decided. The Court's opinion in Natale invalidating the presumptive term relied almost entirely on Blakely as support for its ultimate conclusion. Natale, supra, 184 N.J. at 475-83. The Court also relied upon United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which was not decided until 2005.

In a well-reasoned oral opinion, Judge Peim rejected defendant's argument that trial and appellate counsel were ineffective because they failed to anticipate the Court's decision in Natale. Judge Peim held that because the Court's decision in Natale was an unanticipated repudiation of a long-standing sentencing practice, counsel's failure to anticipate the development of the rule announced in Natale cannot render the performance of trial and appellate counsel objectively unreasonable.

Despite his conclusion that counsel's performance was not unreasonable, Judge Peim nonetheless reconsidered defendant's sentence in light of the principles articulated in Natale. After doing so, he held that the elimination of any consideration of a presumptive term, as required by the Court in Natale, supra, 184 N.J. at 487-88, would not have changed the sentence he imposed in 2001. Accordingly, Judge Peim denied defendant's petition for post-conviction relief.

On appeal, defendant raises in Point II Judge Peim's denial of the Blakely/Natale claims he raised before the Law Division. Point II states:

II. TRIAL COUNSEL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT TO THE LEGALITY OF THE SENTENCING SCHEME BY WHICH THE DEFENDANT WAS JUDGED.

However, in Point I, he raises an additional claim that was not presented or raised in the Law Division:

I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ADMISSION OF HEARSAY AND REPETITIVE TESTIMONY WHICH PREJUDICED THE DEFENDANT AND ULTIMATELY AFFECTED THE OUTCOME OF TRIAL.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Moreover, "[i]t is not enough for the defendant to show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, a defendant must establish "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The claimed deficiencies must amount to more than mere "tactical decisions" and a defendant must overcome the presumption that counsel's actions constituted "sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

We turn first to Point I. Defendant argues that although we rejected on direct appeal his claims concerning the admission of repetitive hearsay testimony, we did so under the more forgiving standard of plain error because trial counsel failed to object to the admission of such testimony. He maintains that he likely would have succeeded on direct appeal had trial counsel objected to this testimony. We reject that claim for three reasons. First, counsel's decision not to object to the testimony fits squarely within Strickland's definition of trial tactics. We will not permit the distorting effects of hindsight to convert legitimate strategy decisions into an after-the-fact conclusion that counsel was ineffective. Ibid.

The record demonstrates that trial counsel used the inconsistencies between S.T.C.'s earlier relatively innocuous descriptions of what had occurred to attack the credibility of her later statements that defendant committed vaginal intercourse. That such trial strategy ultimately did not succeed does not render counsel's performance ineffective. Ibid. Defendant must defeat the presumption that the alleged deficiencies actually constituted "sound trial strategy." Ibid. He has not done so.

Second, as we observed on direct appeal, there was a considerable amount of corroborating circumstantial evidence. We determined that this was not a trial in which the victim's testimony constituted the only evidence against defendant. State v. Velardo, supra, slip op. at 13. We pointed to the emergency room physician's testimony that described extensive injury to S.T.C.'s hymen, which was not explained by any evidence in the record other than defendant's conduct. Ibid. Additionally, the record included testimony from the victim's mother that she noticed: abnormal behavior between defendant and S.T.C., including finding defendant sleeping on top of the covers while S.T.C. was asleep in her bed; and a blood spot on the bed sheet in the bedroom she shared with defendant when there had been no blood spot there before. Ibid. We also pointed to defendant's admission during his trial testimony that he possessed pornographic videotapes identical to those described by S.T.C., which also bolstered S.T.C.'s credibility. Ibid.

We therefore conclude that had trial counsel objected and had the evidence been evaluated under the harmful error standard, rather than the Rule 2:10-2 standard of plain error, the result would have been the same. We would have concluded that such error, even had there been an objection, did not deprive defendant of a fair trial in light of the properly admitted fresh-complaint evidence from Ibanez and Barra and the strong circumstantial evidence the State presented.

Third, the argument defendant raises in Point I was not presented in the Law Division. We do not exercise original jurisdiction except in extraordinary circumstances. The facts and issues presented here are not such a case. For all three of these reasons, we reject the claim defendant advances in Point I.

III.

We turn now to the claim defendant advances in Point II. Defendant was sentenced in 2001 and his direct appeal was concluded in June 2003. Thus, defendant's direct appeal was concluded eighteen months before the Appellate Division decision in Natale, and more than two years before the Court in August 2005 invalidated the presumptive sentence component of the New Jersey sentencing scheme. Natale, supra, 184 N.J. at 487-88. Defendant's sentencing and direct appeal were also concluded before the United States Supreme Court held in 2004 in Blakely, supra, 542 U.S. at 303-05, 124 S. Ct. at 2537-38, 159 L. Ed. 2d at 413-15, that a state's sentencing scheme is unconstitutional if it permits a judge to impose a sentence greater than the maximum sentence by applying aggravating factors that were not found by a jury.

We reject defendant's claim that because Blakely was decided by the United States Supreme Court only a few months after his direct appeal was concluded, appellate counsel was ineffective for failing to anticipate the decision in Blakely and preserve the issue by raising it on direct appeal. As the Court observed in Natale, supra, sentencing judges "relied in complete good faith of the legality of pre-Blakely sentencing procedures" and had "no reason to doubt the viability of our [own] sentencing scheme" until Blakely was decided. Natale, supra, 184 N.J. at 494. Thus, counsel cannot be deemed ineffective for failing to anticipate the Supreme Court's decision in Blakely.

Second, even if we were to assume for the sake of argument that counsel was ineffective for failing to anticipate the Supreme Court's decision in Blakely, and thereby preserve the issue on direct appeal, defendant fails to satisfy the second prong of the Strickland/Fritz test. In particular, he has failed to demonstrate that counsel's deficient performance prejudiced the defense. During the PCR proceeding, Judge Peim in effect conducted a Natale remand proceeding when he analyzed the aggravating and mitigating factors without reference to the prior presumptive term. At the end of that analysis, he concluded that had appellate counsel raised a Blakely issue on direct appeal, and had we remanded for reconsideration of the sentence in light of Natale, the result would have been the same. Thus, in light of Judge Peim's finding that a Natale remand would not have altered the sentence Judge Peim himself imposed in 2001, we share Judge Peim's conclusion that even if appellate counsel's performance were to be deemed ineffective, defendant has failed to establish any prejudice. Consequently, defendant's claim of ineffective assistance of counsel fails. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Affirmed.

Contrary to the provisions of Rule 2:6-2(a)(1), defendant failed to specify in his table of contents that the argument contained in Point I was not raised in the Law Division.

State v. Natale, 373 N.J. Super. 226 (App. Div. 2004).

(continued)

(continued)

14

A-0427-06T4

RECORD IMPOUNDED

December 31, 2008