STATE OF NEW JERSEY v. MARIA RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIA RIVERA,

Defendant-Appellant.

_____________________________________

October 11, 2013

 

Submitted September 23, 2013 - Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 07-01-0040.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William P. Fisher, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Maria Rivera appeals from the March 15, 2011 order of the Law Division denying her petition for post-conviction relief (PCR). She raises the following points for our consideration:

POINT I:

 

THE DEFENDANT ESTABLISHED THAT SHE WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND, THEREFORE, THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF OR, ALTERNATIVELY, BY DENYING AN EVIDENTIARY HEARING PURSUANT TO PRECIOSE.1

 

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETAIN AN EXPERT TO EVALUATE DEFENDANT AND RENDER AN OPINION ON WHETHER SHE SUFFERED FROM BATTERED WOMAN SYNDROME AND/OR OTHER MENTAL DISORDER, AND FOR FAILING TO RAISE DEFENDANT'S BATTERED WOMAN SYNDROME AND/OR OTHER MENTAL DISORDER IN SUPPORT OF MITIGATION AT SENTENCING THROUGH EXPERT TESTIMONY.

 

B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION OF CO-DEFENDANT'S UNDUE INFLUENCE AND/OR COERCION OVER THE DEFENDANT, AND BY FAILING TO PRESENT EVIDENCE OF THE SAME IN MITIGATION AT SENTENCING (RAISED IN PART BELOW).

 

C. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO REQUEST THAT THE COURT SENTENCE DEFENDANT AS A SECOND DEGREE OFFENDER PURSUANT TO N.J.S.A. 2C:44-1(f)(2).

 

D. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO RAISE CERTAIN ISSUES ON DIRECT APPEAL.

 

E. PCR COUNSEL WAS INEFFECTIVE BY FAILING TO RETAIN AN EXPERT TO EVALUATE THE DEFENDANT FOR BATTERED WOMAN SYNDROME AND/OR OTHER MENTAL DISORDERS AND TO RENDER AN OPINION IN SUPPORT OF DEFENDANT'S PCR PETITION (NOT RAISED BELOW).

 

F. DEFENDANT'S COUNSELS' ERRORS WERE CUMULATIVE AND CREATED A REASONABLE PROBABILITY THAT THEY MATERIALLY AFFECTED THE OUTCOME OF THE DEFENDANT'S CASE.

 

POINT II

 

THE CIRCUMSTANCES OF THIS CASE WARRANT THAT THE APPELLATE DIVISION EXERCISE ITS ORIGINAL JURISDICTION AND IMPOSE A REDUCED SENTENCE UPON THE DEFENDANT (NOT RAISED BELOW).

 

POINT III

 

THE PCR COURT ABUSED ITS DISCRETION BY HOLDING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED UNDER R. 3:22-4 AND R. 3:22-5.

 

POINT IV

 

THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HER REQUEST FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We glean the following facts from the record. Defendant had a romantic relationship with the deceased, Kenneth Matthews, which ended prior to this incident. On May 1, 2004, defendant began drinking and using drugs with a friend early in the day. As defendant returned to her home, she saw Matthews and his new girlfriend. Matthews encouraged his girlfriend to fight defendant and watched as defendant was beaten by her.

Defendant called her ex-boyfriend, Julius Marsh, and asked him to bring her a handgun. Marsh gave defendant a Glock nine millimeter and drove her to Matthews's residence. When she spotted Matthews, defendant said, "that's how you're gonna do me," or "why did you do me that way." She then fired one shot into defendant's chest. Matthews was taken to the hospital where he died the next day.

Defendant was indicted and charged with first-degree murder, N.J.S.A. 2C:11-3(a)(2), and related weapons charges. She pled guilty to first-degree aggravated manslaughter, and was sentenced to fourteen years in prison with an eighty-five percent parole ineligibility. On January 15, 2008, we affirmed defendant's sentence, but remanded for correction of the judgment of conviction to include the mitigating factors identified by the judge at sentencing. On May 16, 2008, the Supreme Court denied defendant's petition for certification. State v. Rivera, 195 N.J.521 (2008).

Defendant then filed a PCR petition claiming her plea counsel was ineffective for failing to raise certain mitigating factors and for failing to request a lesser sentence. The PCR court ruled that the first claim was barred by Rule3:22-5 as previously decided and the remaining claim was barred by Rule3:22-4 as it could have been raised on direct appeal. The court also denied the petition on substantive grounds finding that defendant's plea counsel "did argue for all applicable mitigating factors." The court noted that counsel's arguments were so persuasive that the sentencing court imposed a term that was one year below the negotiated term. As to defendant's claim that counsel should have presented evidence of her mental health, the court noted that information provided by defendant in the presentence report indicated that she suffered no illnesses, took no medications and had no prior hospitalizations. Thus, the court concluded, counsel's decision not to have her evaluated was reasonable.

II.

A.

Defendant first argues that her trial, appellate, and PCR attorneys were ineffective and seeks a remand for a new sentencing, or, in the alternative, an evidentiary hearing.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, she must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, she must prove that she suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. "[I]n order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994).

The Strickland Court, having considered the wide "variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant[,]" declared there is "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. "To rebut that presumption, a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy.'" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. A court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The New Jersey Supreme Court has characterized this presumption as "extreme deference in evaluating the performance of counsel[.]" Fritz, supra, 105 N.J. at 52.

An evidentiary hearing on an ineffective assistance of counsel claim should be granted only "if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. To prove a prima facie case, a defendant must demonstrate a "reasonable likelihood of succeeding" under the Strickland test. Id. at 463. In addition, "courts should view the facts in the light most favorable to a defendant[.]" Id. at 462-63.

The first of defendant's ineffective assistance claims is that trial counsel failed to fully investigate and retain an expert to evaluate: (1) defendant's history as a victim of domestic violence from both the victim and her co-defendant, (2) whether she suffered from battered woman syndrome, and (3) defendant's other potential mental disorders. In addition, defendant claims counsel was ineffective for failing to raise any of these issues as mitigating factors during plea negotiations and at sentencing.

The sentencing court was aware of defendant's history of her relationship with Matthews. Counsel's sentencing memorandum described defendant's relationship with Matthews as "turbulent and dysfunctional . . . for many months. . . during which Matthews was physically and mentally abusive to Ms. Rivera." In addition, the memorandum discussed the assault on defendant earlier in the day by Matthews's girlfriend in his presence. At sentencing, plea counsel informed the court that defendant "[h]ad been hit over the head with [a gun] by Mr. Marsh previously . . . ."

Defendant's presentence report indicated that she was "in good physical and mental health" and that she, herself reported "no illnesses, medications, or any recent hospitalizations[,]" but she abused alcohol and illegal narcotics. The report stated that defendant drank alcohol daily since age fifteen, occasionally smoked marijuana since age seventeen, and snorted cocaine weekly since age twenty-seven. Defendant's sister spoke at sentencing on her behalf, claiming that defendant was a product of a family of "all drug addicts and alcoholics[.]"

Defendant claims plea counsel failed to include additional details of her violent relationships. She provides a police report indicating that in March 2004, Marsh punched her in the face after a verbal argument, and a temporary restraining order was entered. Defendant also claims that another boyfriend, Walter Watson, struck her in the mouth with a boot, hit her on the head with a glass, punched her arm, and choked her in 2002.

She also complains that plea counsel failed to present evidence of her depressive disorder including two prior attempts at suicide and post-traumatic stress disorder caused by battered woman syndrome.

At sentencing, the prosecutor explained that the State considered the circumstances that took place the day of the shooting including defendant's intoxication, and her mental state, when offering the reduced plea and the sentence of fifteen years. The court accepted plea counsel's argument that mitigating factors outweighed aggravating factors, and reduced defendant's sentence one year lower than the negotiated term.

Defendant's plea counsel presented evidence of defendant's mental state and history during plea negotiations, and argued it at sentencing. Defendant claims that plea counsel should have presented additional evidence as to her mental state. The Strickland Court explained:

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

 

[Strickland, supra, 466 U.S. at 690-91, 10 S. Ct. at 2066, 80 L. Ed. 2d at 695.]

 

Plea counsel's decision concerning how much information to present regarding defendant's mental state is a strategic choice and unchallengeable. Moreover, defendant is required to "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant has failed to produce expert reports or certifications that support her claim that she suffered from battered woman syndrome. Considering the high deference we show to an attorney's strategic decisions, counsel's performance was reasonable and defendant has failed to demonstrate ineffective assistance.

Having failed to establish the first Strickland prong, we need not discuss the second prong, which requires defendant to show prejudice by counsel's error. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We note only that to satisfy the prejudice requirement of Strickland, a defendant must prove that, but for counsel's errors, she would not have pled guilty. See Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Defendant does not claim that she would have gone to trial but for counsel's errors and confirms in her brief that she does not wish to retract her guilty plea. Defendant has made no showing of how counsel's deficient performance prejudiced her; she only describes some of the other options that would have been available.

B.

Defendant's next claim is plea counsel failed to present evidence of coercion by her co-defendant, Marsh. We note that plea counsel did argue at sentencing that Marsh influenced defendant in the murder. Beyond that, it is understandably difficult for defendant's counsel to allege defendant was coerced by Marsh when she admitted that she called Marsh and asked for a gun, which she eventually used to kill Matthews. Plea counsel's choice not to pursue the coercion argument was a strategic decision, and judging from the facts of this case, a wise one.

C.

Defendant next argues that counsel was ineffective for failing to request that the court sentence her as a second-degree offender, pursuant to N.J.S.A. 2C:44-1(f)(2). We disagree.

N.J.S.A. 2C:44-1(f)(2) provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

 

In State v. Megargel, 143 N.J. 484 (1996), the Court articulated the standard for determining whether a defendant's first- or second-degree conviction should be downgraded pursuant to the statute. Id. at 500. The Court stated that the focus should be on the severity of the crime, and in evaluating the severity, "the trial court must consider the nature of and the relevant circumstances pertaining to the offense. . . . The surrounding circumstances of an offense may make it very similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate." Ibid. The Court also explained that:

[a]lthough the degree of the crime is the focus of the sentence, facts personal to the defendant may be considered in the sentencing process. Courts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him.

 

[Id. at 501 (internal citations omitted).]

 

Finally, the Megargel Court said that "a court must consider whether there is a compelling reason to downgrade defendant's sentence in the interest of justice . . . ." Ibid. "[T]he standard governing downgrading is high." Id. at 500.

In State v. Mirakaj, 268 N.J. Super. 48, 50-51 (App. Div. 1993), we discussed the severity of a charge of aggravated manslaughter:

[t]he Legislature has established a thirty year maximum and twenty year presumptive term for aggravated manslaughter, rather than the twenty year maximum and fifteen year presumptive term applicable to other first degree offenses, which reflects a legislative judgment that this is an especially serious first degree offense. This legislative judgment suggests that trial courts should be cautious in imposing downgraded sentences for aggravated manslaughter.

 

[Id. at 50-51.]

 

There has been no showing that the interests of justice support defendant's claim that she should have been sentenced to a lower degree. Plea counsel's failure to request that defendant be sentenced as a second-degree offender was not unreasonable under the Strickland standard.

 

 

D.

Defendant next claims her appellate counsel was ineffective for failing to raise the reduced sentence and the battered woman syndrome issues on direct appeal.

The right to effective assistance of counsel, as set forth in Strickland, applies to appellate counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987); State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998). "[D]efendant must show not only that [her] attorney's representation fell below an objective standard, but also that [s]he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different." Morrison, supra, 215 N.J. Super. at 546.

Under Strickland, defendant has to show that the issues not raised on appeal would have been successful. Defendant has not shown that if counsel had raised both issues, the arguments would have been successful.

E.

We find the remainder of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Defendant argues that the PCR court was incorrect in ruling that her PCR petition was procedurally bared by Rule3:22-5. Defendant argues that because the issue of counsels' effectiveness was not litigated on direct appeal, her petition is not barred by Rule3:22-5. In the alternative, defendant argues that even if it is procedurally barred, the rule should be relaxed because it involves "constitutional questions of substantial import." We disagree.

Rule 3:22-5 provides:

[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

This rule bars defendants from raising any claim on PCR that was already adjudicated on the merits or that was an "identical or substantially equivalent" issue. State v. McQuaid, 147 N.J.464, 484 (1997).

Here, the PCR court ruled that defendant raised the issue of her mental health history on direct appeal, claiming that she was physically and psychologically abused by the victim and describing her substance abuse history. The PCR court concluded that the arguments that defendant's mental health should have been evaluated and that she suffered undue influence or coercion from the co-defendant were both procedurally barred pursuant to Rule 3:22-5.

As we see no constitutional violations or errors, seeState v. Mitchell, 126 N.J.565, 586 (1992) ("Cloaking the claim in constitutional language will not guarantee relief."), the claims were appropriately denied on substantive as well as procedural grounds.

Affirmed.

1 State v. Preciose, 129 N.J. 451 (1992).