STATE OF NEW JERSEY v. JOSE CASTILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2397-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE CASTILLO,

Defendant-Appellant.

_____________________________

December 28, 2010

Submitted: December 8, 2010 - Decided:

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-12-1881.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Lynne G. Seborowski, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Jose Castillo, appeals from a May 15, 2009 order denying his petition for post-conviction relief (PCR). He argues that his trial and PCR counsel were ineffective. We disagree and affirm.

On May 24, 1999, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (Count One), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three). In his factual basis provided under oath at the plea proceeding, defendant testified that he shot and killed one victim and inflicted serious bodily injury to another victim. On August 19, 1999, the judge sentenced defendant on Count One to twenty years in state prison subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to five years in prison on Count Three. The sentence is consistent with the plea agreement. Defendant argued on direct appeal that his sentence was excessive. On October 16, 2002, we affirmed the judgment, stating that "the issues on appeal relate solely to the sentence imposed, we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."

On September 25, 2008, defendant filed his PCR petition and argued in his pro se letter brief that:

POINT I

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL INDUCED DEFENDANT TO PLEAD GUILTY TO A 20 YEAR NERA TERM FOR AGGRAVATED MANSLAUGHTER.

POINT II

DEFENDANT'S FACTUAL BASIS WAS UNSUPPORTED BY THE EVIDENCE AND COUNSEL WAS INEFFECTIVE FOR ALLOWING DEFENDANT TO PLEAD GUILTY AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT SENTENCING BY FAILING TO ADVANCE A MEANINGFUL ARGUMENT IN SUPPORT OF A LESSER TERM.

POINT IV

DEFENDANT WAS MISINFORMED OF THE TOTAL PENAL CONSEQUENCES THEREFORE HIS PLEA SHOULD BE VACATED OR THE SENTENCED TAILORED TO FIT DEFENDANT'S REASONABLE EXPECTATIONS.

In February 2009, defendant filed an unsigned amended PCR petition and contended that he filed his September 25, 2008 petition untimely because "he has suffered from ill health for . . . years."

On May 15, 2009, the PCR judge denied defendant's PCR petition and issued a twenty-two page written opinion. The judge concluded that defendant's petition was procedurally time-barred pursuant to Rule 3:22-12(a). He found that "[a] bald and generalized assertion of suffering ill health for 'a number of years' is insufficient, without more, to provide a reasonable basis for relaxation of the time bar." The PCR judge determined that defendant failed to establish a prima facie case of ineffective assistance of counsel.

On this appeal, defendant argues that:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF. (Not Raised Below)

POINT II

THE LAW DIVISION JUDGE ERRED IN HOLDING THAT DEFENDANT'S CLAIMS ARE BARRED BY R. 3:22-3, R. 3:22-5 and R. 3.22-12(a)

POINT III

THE LAW DIVISION JUDGE SHOULD HAVE GRANTED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARA. 10, OF THE NEW JERSEY CONSTITUTION

A. Defendant was Denied Effective Assistance of Counsel During Trial Preparation and Plea Negotiations

B. Defendant was Denied Effective Assistance of Counsel at Sentencing

POINT IV

THE LAW DIVISION JUDGE SHOULD HAVE GRANTED DEFENDANT A HEARING ON HIS PETITION FOR POST CONVICTION RELIEF

POINT V

DEFENDANT S PCR PETITION SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT S PRO SE LETTER BRIEF IN SUPPORT OF HIS PETITION.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). Whether "retained or appointed," counsel must "ensure that the trial is fair;" therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

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 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 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).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the 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.

[Ibid. (citations omitted).]

We begin by addressing the timeliness of defendant's PCR petition. Defendant filed his petition more than nine years after his convictions because "he has suffered from ill health for . . . years." He argues that he demonstrated facts showing that the delay was due to excusable neglect and he contends that the PCR judge erred by not so finding. From the record, we do not know what the illness is, when he developed it, what limitations existed, whether he received medical treatment, and when his condition resolved. Defendant's general assertion that he suffered from a long illness, without more, is insufficient to establish excusable neglect. Thus, the PCR judge properly dismissed the petition as time-barred. Moreover, we conclude on the merits that defendant failed to establish a prima facie case of ineffective assistance of trial or PCR counsel.

Defendant argues that he was denied effective assistance of counsel during the "plea process" because he could not read or write English, his lawyer coerced him to plead guilty, and he did not understand the penal consequences of his parole supervision. At the beginning of the plea proceeding, defense counsel stated that:

The [c]ourt will note [that] there is an interpreter here. I have to state for the record [that] all conversations [defendant] and I have had have been in English. He has been able to understand English and answer me in English. But because of the seriousness of this case, Judge, at the time we did the plea form, again I spoke to him only in English but I had a Court Interpreter sitting next to me in case he didn't understand any word. For the record, there was not one word he did not understand in English.

Is everything I have said correct so far, Jose?

Defendant: Yes.

Defense counsel explained the entire plea agreement on the record, and defendant stated he understood what counsel said. The judge then repeated the terms of the agreement and asked defendant if he understood, and he said "[y]es." The judge asked defendant several other times throughout the plea proceeding if he understood and he said "[y]es." Defendant testified in English during the entire proceeding and stated that no one forced or coerced him to plead guilty, and that he was satisfied with the legal services of his attorney. Finally, the judge explained to defendant that if he violated his parole supervision he could serve more time in prison than his original sentence. Thus, we find no merit to his argument that he was denied effective assistance of counsel during the "plea process."

Next, defendant's contention that defense counsel failed to argue the applicable mitigating factors at sentencing is without merit. The judge stated that defendant decided to take the law into his own hands. Defendant learned that the victim stole his brother s bicycle, retrieved a nine millimeter handgun, pointed it at the victim, and pulled the trigger five or six times, killing the victim. In the process of shooting that victim, defendant caused serious bodily injury to another victim. Under the circumstances of this case, defense counsel presented a strong and well-focused argument, addressed aggravating and mitigating factors, and persuaded the judge to impose a concurrent rather than consecutive prison term.

We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).