STATE OF NEW JERSEY v. OSEAS S. PONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3438-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSEAS S. PONS,

Defendant-Appellant.

May 7, 2012

Submitted February 6, 2012 - Decided

 
Before Judges Alvarez and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-11-1594.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

TheodoreJ. Romankow,Union CountyProsecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Oseas Pons was convicted after trial by jury of multiple counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and related offenses, including kidnapping, N.J.S.A. 2C:13-1. On October 8, 2004, he was sentenced to an aggregate term of thirty-five years of imprisonment subject to the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).

Defendant's convictions and sentence were affirmed on appeal. State v. Pons, No. A-2437-04 (App. Div. Oct. 3, 2007). The Supreme Court denied certification on December 5, 2007. State v. Pons, 193 N.J. 276 (2007).

Defendant thereafter filed a petition for post-conviction relief (PCR) based on a claim of ineffective assistance of counsel and was granted an evidentiary hearing. After the completion of the hearing on September 25, 2009, the petition was denied. This appeal follows, and we affirm.

The nature of defendant's crimes is detailed in the opinion issued on defendant's direct appeal. Suffice it to say that defendant, along with others, including his co-defendants Emilio Giron and Eric Quintanilla, forcibly raped three women on three separate dates. During the second and third assaults, a box cutter and a knife, respectively, or only knives, were used as weapons.

Quintanilla confessed to the second assault, and implicated Giron, Giron's brother Carlos, and defendant. Quintanilla also confessed to the third attack, this time implicating defendant, Giron, Carlos, and a man named Luis. Quintanilla entered into a plea agreement with the State and testified at trial against defendant.1 On cross-examination, however, he denied having seen defendant engage in sexual acts with either victim. As part of its case-in-chief, the State read into the record Quintanilla's plea transcript, in which he testified under oath he saw defendant engage in sexual acts with the third victim.

The first victim identified defendant and Quintanilla in photo arrays and identified defendant in court. The second victim identified defendant from a photo array as the assailant who held a box cutter to her throat while she stood at a payphone, sexually assaulted her, and took her purse.

The judge denied the PCR petition because, in his view, defendant could not establish that any prejudice resulted from his attorney's competent and vigorous representation, particularly in light of the "overwhelming" nature of the State's proofs. The judge found that trial counsel met with his client on many occasions; extensively prepared for trial, including reviewing all the victims' statements with defendant; vigorously attacked the credibility of all three victims, all of whom had prior criminal histories; and developed a trial strategy with his client. In fact, when defendant was offered a plea agreement in the midst of trial, defendant told his attorney that he thought the trial was going well and thus he rejected the offer. Additionally, at trial the judge engaged in a colloquy with defendant on his decision not to testify, made despite his lack of a prior criminal record.

Ultimately, the motion judge concluded that trial counsel was "fully prepared, was vigorous, was involved, and there was no [ineffectiveness] of counsel. . . . It just didn't work." Therefore, since the Strickland2 test was not met, he denied the petition.

On appeal, defendant asserts the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A) Trial counsel failed to conduct an adequate investigation

B) Trial counsel failed to consult with defendant in a meaningful manner

C) Trial counsel failed to argue that Quintanilla's original statement was coerced

D) Trial counsel was ineffective during plea negotiations

E) Trial counsel failed to move to have the DNA results excluded

POINT II

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS

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

In a pro se submission, defendant adds:

POINT I: PCR COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO RAISE DEFENDANT'S CLAIM OF NEWLY DISCOVERED EVIDENCE

I

In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the two-part rule articulated by the United States Supreme Court in Strickland. In order to establish an ineffective assistance of counsel claim, defendant must first show that "counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Defendant must also demonstrate that "the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This prong is satisfied by a showing "that there is '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 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Our review of PCR claims is "highly deferential" and we presume that counsel acted reasonably. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

II

Defendant asserts that trial counsel was ineffective due to inadequate investigation. In support of this argument, he alleges that counsel could have mounted a defense based on the lack of physical evidence located in his vehicle, namely, the absence of blood or DNA material.

More is required, however, than the bald assertion that such an investigation would have produced evidence, or in this case, the absence of evidence, that would have been favorable to the defense. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). This bald assertion does not meet either prong of the Strickland test.

Defendant next contends his trial counsel failed to consult with him in a meaningful manner. That contention, however, lacks record support. The judge credited trial counsel's testimony that he met with defendant on multiple occasions, both in the jail and the courthouse, reviewed the discovery materials with him, including the victims' statements, and extensively discussed trial strategy.

On appeal, we review deferentially a judge's factual findings, particularly those founded on a witness's credibility. See State v. Diaz-Bridges, 208 N.J. 544, 566 (2012). Nothing in the record causes us to question the judge's determination that trial counsel was a credible witness. It therefore follows that we also accept the judge's conclusion that trial counsel consulted with defendant in a meaningful, sufficient, and professional manner as the attorney described. Therefore, this contention also fails.

Defendant asserts that counsel was ineffective because he failed to argue that Quintanilla's original statement was coerced. This lacks record support as trial counsel testified that he vigorously argued that very point to the jury; the trial transcript of his closing statement corroborates his testimony.

Defendant now contends that he rejected the plea bargain based on his attorney's assurances that he would be acquitted, or that he rejected the plea bargain because his family was in the courtroom and he was reluctant to enter into a plea agreement in their presence. There is no record support for the claim that counsel gave defendant a false sense of hope regarding the outcome of the trial; just defendant's bald assertion. Defendant may have had such expectations but if he did, it was not the product of any act or omission by his attorney.

As defendant points out in his brief, trial counsel during the evidentiary hearing said that "I could have swore [sic] that there was a moment that he wanted to take [the plea agreement] and, you know, I always thought because his family was in the room that stopped him. And I -- and I -- if I would have known then that I could just tell the family to wait outside, have his mom wait outside, I think [defendant] would have took [sic] the deal. That was a tough one." Counsel was clearly speculating as to defendant's thought processes.

Significantly, counsel did not say that defendant actually expressed an interest in accepting a plea bargain, or even that he felt self-conscious because of the presence of his family. It was defendant's responsibility to tell his attorney that he wanted to engage in plea negotiations, not up to the attorney to guess. If defendant did not say anything about the offer, or that he was uncomfortable about his family's presence, the responsibility for the choice to reject the offer rests with him. Inaction in the face of a client's silence is not ineffective assistance of counsel. It would be unreasonable to add to an attorney's professional responsibilities the expectation that he or she read a client's mind.

Defendant also asserts that trial counsel was ineffective because he failed to suppress the use of DNA evidence. Where DNA testing can only show that a defendant cannot be excluded, such as was true in this case, the evidence is both relevant and admissible at trial. State v. Calleia, 414 N.J. Super. 125, 150-51 (App. Div. 2010), rev d on other grounds, 206 N.J. 274 (2011). Since there would not have been any legal basis for denying admission of the evidence, it was not ineffective assistance of counsel for defendant's attorney to fail to object. This claim does not pass muster under Strickland either.

III

Defendant seeks reversal due to "additional errors," enumerating issues which were all addressed on direct appeal: joinder, the accomplice liability instruction as to kidnapping, the insufficiency of the evidence on the aggravated assault charge, and the disproportionality of his sentence compared with his codefendant. Reconsideration of these claims on PCR is procedurally barred by Rule 3:22-5, which states unequivocally that issues previously decided may not be revisited. Contrary to defendant's position, the rule is dispositive.

IV

In his pro se submission defendant argues that PCR counsel was ineffective because he failed to raise defendant's claim of newly discovered evidence. Giron, according to defendant's brief, is now incarcerated in the same facility as defendant, and "would be willing to make an affidavit to clear up that he was only trying to cover up for his brother." This contention is so lacking in merit as to not warrant further discussion in a written opinion. See R. 2:11-3(e)(2).

We similarly dispose of defendant's remaining claim that the cumulative errors warrant reversal. Since there were no errors, this claim is so lacking in merit as to not warrant further discussion in a written opinion. Ibid.

A

1 His plea agreement required him to testify only against Giron.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).