STATE OF NEW JERSEY v. ISRAEL ARROYO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1571-06T41571-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISRAEL ARROYO,

Defendant-Appellant.

_______________________________

 

Submitted November 19, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

03-03-0144.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Roger L. Camacho, Designated Counsel, of

counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney

for respondent (Roseann A. Finn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Israel Arroyo appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.

On May 23, 2003, pursuant to a negotiated agreement, defendant pled guilty to an accusation charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and to one count of a two-count indictment charging him with second-degree eluding, N.J.S.A. 2C:29-2(b). As to the former, the State agreed to recommend a ten-year prison term with an 85% parole bar pursuant to the No-Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and as to the latter, a concurrent seven-year prison term. At the time of the plea, defendant gave a proper factual basis for both offenses and represented that the plea was entered freely and knowingly. He also acknowledged the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -11, applied; that he was subject to DNA testing; that he would be evaluated for commitment at Avenel; that he could be subject to involuntary civil commitment after completing his sentence pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to

-27.38; and that he would lose his driver's license for one year.

Defendant was sentenced on July 25, 2003, in accordance with the plea agreement, to an aggregate ten-year term, subject to the 85% parole bar. Based upon the Avenel evaluation, the judge recommended that defendant serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) after completion of the mandatory period of parole ineligibility. Appropriate fees and penalties were also imposed. Pursuant to the State's motion, the judge dismissed count two of the indictment.

Defendant did not appeal, having waived that right as part of his plea bargain, Rule 3:9-3(d). He did, however, file a PCR application, wherein he argued that counsel was ineffective for failing to explain his potential exposure under the plea agreement and failing to investigate defendant's own sexual abuse as a child as well as the truthfulness of the victim's accusation of sexual assault. The PCR judge, who was the same judge who heard defendant's plea and sentenced him, disagreed and denied the application, reasoning:

First, the defendant failed to produce any evidence in the form of any affidavit or certification from any relative witnesses, or even from himself, that trial counsel failed to explain his exposure under the plea agreement. In any case, the record contradicts his claim.

Second, even assuming trial counsel never explained to the defendant exposure under the plea agreement, the fact that the defendant acknowledged his understanding of exposure through affirmative responses to the Court's question, and through the execution of standard and supplemental plea forms, compels a finding the defendant suffered no prejudice from such a result. Therefore, the defendant is not entitled to an evidentiary hearing on that claim.

. . . . The defendant alleges trial counsel did not investigate the accuser or other potential witnesses. While our Courts have recognized counsel's duty to make reasonable investigations, or to make a reasonable decision that particular investigations are unnecessary[,] (See State versus Savage, 120 N.J. 594), the defendant in this matter has not submitted any affidavits or certifications from witnesses he claims trial counsel should have investigated, indicating what information they could have provided, or how that information would have changed his decision to plead guilty. Therefore, the defendant cannot make out a prima facie showing of ineffective assistance.

Likewise, the defendant does not identify what discovery documents trial counsel failed to review with him. Although, the defendant pled guilty Pre-Indictment Rule 3:13-3A, provides a mechanism for the inspection of discovery where a pre-indictment plea offer is on the table. However, without some indication from the defendant as to what specific discovery document counsel failed to review with him, or what information those documents contained would have changed his decision to plead guilty, defendant does no more than make bold assertions that he was denied effective assistance of counsel. This is not enough to make a prima facie showing.

Defendant's final two claims are equally insufficient to make out a prima facie showing of ineffective assistance, for substantially the same reasons his other claims fail. First, the defendant claims trial counsel never informed him what the victim said, or about the alleged sexual acts committed against her. While the defendant does not identify what the victim said, . . . even assuming his claim is true, defendant still offers no suggestion as to how the proceeding would have been different, had counsel told him what the victim said. He therefore fails to make out a prima facie showing of prejudice. In this matter the defendant admitted, not only to this Court, but to the Aven[e]l evaluation that he did, in fact, commit this crime, and was guilty of this crime.

The defendant also claim[s] trial counsel never investigated whether another person had committed the offense against the victim. Without any affidavit or certification from a witness with knowledge someone else committed the offense, the defendant's claim is utterly baseless, especially as it appears identity was never an issue in this case.

. . . .

Defendant claims trial counsel was ineffective for failure to investigate the defendant's history of childhood sexual abuse . . . . The defendant has not provided any evidence he informed trial counsel of these incidents, and trial counsel failed to investigate them. However, even if that were the case, the defendant has not suggested how this prejudiced him in any way, or affected his decision to plead guilty. Defendant has offered no evidence in the form of an affidavit, a certification from a qualified expert that the fact of his prior abuse and resulting mental state supported an insanity or diminished capacity defense. In fact, the defendant has not even offered any argument that his prior abuse would have been admissible at the trial at all.

Finding no support in the record for any of defendant's claims, the PCR judge denied defendant's request for an evidentiary hearing and any further relief.

On appeal, defendant raises the following issues:

I. THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT ARROYO'S POST-CONVICTION RELIEF BASED UPON HIS CLAIMS THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, ESPECIALLY IN REGARD TO FAILING TO FULLY EXPLAIN HIS EXPOSURE IF THE STATE EFFECTUATED A CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT (S.V.P.A.) (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

II. THE PCR COURT REVERSIBLY ERRED IN REJECTING ARROYO'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE CUMULATIVE EFFECT OF ARROYO'S GROUNDS FOR POST-CONVICTION RELIEF WARRANTED A REVERSAL OF HIS CONVICTIONS AND SENTENCES (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

III. AT A MINIMUM, THE PCR COURT REVERSIBLY ERRED IN REJECTING ARROYO'S REQUEST FOR AN EVIDENTIARY HEARING ON THE ISSUES ARGUED IN POINTS I AND II HEREOF BECAUSE ARROYO DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON THOSE GROUNDS AS DISCRETE ITEMS AND IN THEIR CUMULATIVE EFFECT. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

IV. THE PCR COURT REVERSIBLY ERRED IN FAILING TO MODIFY ARROYO'S ILLEGAL AND UNCONSTITUTIONAL SENTENCES AS REQUESTED IN HIS PETITION FOR POST-CONVICTION RELIEF. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

We have considered each of these claims in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

We, therefore, affirm substantially for the reasons stated by Judge Natal in his thorough oral opinion of August 4, 2006. We add, however, the following comments.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., 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). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Relying on State v. Bellamy, 178 N.J. 127 (2003), defendant now contends, for the first time, that even though he was advised that he could be civilly committed upon completion of his criminal sentence under the SVPA, counsel's failure to specifically explain the potential for a life- or long-term civil commitment was constitutionally ineffective and requires withdrawal of his guilty plea. We disagree.

On December 11, 2003, the Supreme Court issued the Bellamy decision, holding that "when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence." 178 N.J. at 139. The Court further held that the "failure of either the court or defense counsel to inform defendant" that the future confinement could be for an indefinite period deprives the defendant of information necessary for a knowing and voluntary plea. Ibid. Significant for present purposes, the Court further held that its decision was a "new rule" which was to be given limited retroactive effect and applied only to those cases pending on December 11, 2003, "in which the defendant has not yet exhausted all avenues of direct review." Id. at 143.

As noted, defendant entered his guilty plea on May 23, 2003, and was sentenced on July 25, 2003, more than four months before the Supreme Court's decision in State v. Bellamy, supra. On the date of that decision, defendant had no direct appeal pending. Because Bellamy has only limited retroactive application to those cases pending direct review on December 11, 2003, and defendant had no pending direct appeal, the ruling simply does not apply to defendant's claim on PCR. Accordingly, we find no merit to defendant's claim that trial counsel was ineffective for advising defendant of the possibility of civil commitment under the SVPA but failing to specify that the commitment could possibly be a long-term one. We also find no proof of prejudice on this score, namely that the result would have been no different were defendant so informed.

Similarly lacking is any competent evidential support for defendant's remaining ineffective assistance of counsel claims. Thus, having failed to establish a prima facie showing, defendant was properly denied an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

(continued)

(continued)

9

A-1571-06T4

December 12, 2008