STATE OF NEW JERSEY v. LUIS MATEO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3442-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS MATEO, a/k/a

LUIS A. MATEO,

Defendant-Appellant.

________________________________________________________________

April 24, 2013

Submitted February 13, 2013 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-11-1536.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Luis Mateo appeals from the August 4, 2010 order denying his petition for post-conviction relief (PCR). Defendant claims that he was deprived of the assistance of effective appellate counsel. Specifically he contends:

POINT I: THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST[-]CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, BECAUSE THE APPELLATE COUNSEL FAILED TO RAISE THE FOLLOWING ISSUES:

A. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE DEFENDANT TO REPRESENT HIMSELF WITHOUT A KNOWING, VOLUNTARY AND INTELLIGENT WAIVER OF HIS CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF TRIAL COUNSEL.

B. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PROVIDE THE LESSER[-]INCLUDED CHARGE OF THEFT.

AND,

C. THE TRIAL COURT ABUSED ITS DISCRETION BY ITS IMPROPER AND BIAS[ED] QUESTIONING OF THE STATE'S KEY WITNESS (raised partially below).

AND THE ABOVE ISSUES WARRANTED THE REVERSAL OF THE DEFENDANT'S CONVICTION.1

After reviewing the record in light of these contentions, we affirm.

Although defendant was indicted with a co-defendant, he was tried alone. The jury found him guilty of first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge merged the convictions and sentenced defendant to twenty years in prison subject to the terms of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the convictions, but remanded for resentencing. State v. Mateo, No. A-5286-03 (App. Div. Oct. 18, 2005) (slip op. at 2). The Supreme Court granted defendant's petition for certification and summarily remanded for resentencing in light of State v. Natale, 184 N.J. 458, 494 (2005). State v. Mateo, 186 N.J. 251 (2006). Defendant was then sentenced to fifteen years subject to NERA. We affirmed that sentence by order of June 23, 2009.

In our prior opinion we summarized the evidence, stating:

Defendant's conviction arose from a deceptive scheme, which began with defendant asking the victim in Spanish whether he wanted to have sex, for $20, with defendant's girlfriend and co-defendant . . . . Once defendant and [his girlfriend] had the victim in a rooming house, defendant drew a concealed sword and demanded all of the victim's money. The victim gave [the girlfriend] his entire wallet containing $300. [The girlfriend] returned $20 to the victim, and defendant and [the girlfriend] fled from the building.

[Mateo, supra, slip op. at 2.]

On direct appeal, defendant raised issues relating to the judge's questioning of his co-defendant, who testified for the State, and the testimony of a police officer indicating that he was familiar with defendant through "other" incidents. As noted above, defendant's appellate counsel also successfully raised a sentencing issue.

In order to establish entitlement to relief on ineffective assistance of counsel grounds, a defendant must prove that counsel's performance was "deficient" and "that the 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); see also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel). In establishing deficient performance, a defendant must overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Additionally, there must be proof "that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Prejudice requires a showing of a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). These standards apply to claims based on errors of appellate and trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

There are two well-settled applications of the foregoing principles that are pertinent to the issues defendant raises here. The deficient performance essential to obtain relief under Strickland cannot be shown by a failure to raise an issue that has no merit. State v. Harris, 181 N.J. 391, 497 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Similarly, the prejudice Strickland requires cannot be shown by pointing to a failure to raise a claim of error where the error at issue is not reversible. See State v. Echols, 199 N.J. 344, 361 (2009).

We apply these standards to defendant's three objections to his appellate attorney's performance separately.

A

Defendant raises two claims involving the role of his appointed trial counsel. From opening statements through sentencing, defendant was represented by his appointed counsel, but prior to that point, defendant had represented himself, with the assistance of stand-by counsel, to present an argument on suppression of the evidence, at the Wade2 hearing and during jury selection. Defendant had asked the court to allow him to proceed with a hybrid form of representation where he and his counsel could together act on his behalf, but the court denied that request. Defendant now contends that his appellate attorney was ineffective for failing to argue that the court erred in denying hybrid representation and allowing defendant to represent himself prior to opening statements.

The first claim does not require extended discussion. R. 2:11-3(e)(2). There is no right to hybrid representation. State v. Figueroa, 186 N.J. 589, 594 (2006); accord State v. King, 210 N.J. 2, 19 n.2 (2012). Accordingly, defendant cannot establish deficient performance or prejudice on this ground.

We also conclude that defendant is not entitled to relief because of his appellate counsel's failure to argue that defendant's waiver of his right to counsel at the pre-trial proceedings was invalid.

A criminal defendant's waiver of his right to counsel under the Sixth Amendment must be knowing and voluntary. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S. Ct. 944, 948, 79 L. Ed. 2d 122, 130 (1984); State v. Crisafi, 128 N.J. 499, 509 (1992). A defendant who knowingly and voluntarily waives his right to counsel will not be successful in a later claim that he was deprived of his right to counsel. McKaskle, supra, 465 U.S. at 177 n.8, 104 S. Ct. at 950 n.8, 79 L. Ed. 2d at 133 n.8 ("As a corollary, however, a defendant who exercises his right to appear pro se 'cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.''" (citation omitted)).

In Crisafi, the Court delineated the warnings that a judge must provide defendants and added to them in State v. Reddish, 181 N.J. 553 (2004). These requirements were summarized in State v. DuBois, 189 N.J. 454, 468-69 (2007) and again in King, supra, 210 N.J. at 18-19. A trial judge making an assessment of voluntariness should inform the defendant of several considerations. In particular, the judge ordinarily should address the following nine issues, the first six of which were outlined in Crisafi, and the remaining three in Reddish:

(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.

[DuBois, supra, 189 N.J. at 468-69.]

In this case, the judge explained the armed robbery charge and the sentence it carries, including the mandatory NERA component (issue 1)3 and the difficulties of self-representation with the assistance of stand-by counsel (issue 2). He told defendant of the necessity of complying with rules of evidence and procedure (issue 3). The judge warned defendant that he would be at a severe disadvantage as a non-lawyer in the courtroom (issue 4). The judge also warned defendant about the difficulty of playing two roles in the courtroom (issue 5). He cautioned defendant that even Clarence Darrow hired a defense attorney when charged with a crime, quoting Darrow as saying, "A man who represents himself has a fool for a client." (Issue 6). The judge engaged defendant in lengthy discussions about his reasons for choosing to represent himself (issue 7). The judge also explained the potential impact of self-representation on defendant's right to remain silent (issue 9). After this lengthy colloquy, during which defendant expressed his dissatisfaction with his assigned counsel as his prime reason for choosing to represent himself, the judge determined that defendant was entitled to do so.

The judge did not inform defendant that if he represented himself he would not later be able to raise ineffective assistance of counsel (issue 8), as outlined in Reddish, supra, 181 N.J. at 593-95. That single omission is not fatal, however. See DuBois, supra, 189 N.J. at 472-75 (finding a knowing and voluntary waiver of counsel despite the omission).

Based on our review of the colloquy, we have no doubt that if appellate counsel had questioned the validity of defendant's waiver of representation, relief would have been denied. Thus, there is no basis to find prejudice from appellate counsel's failure to raise the issue.

B.

Defendant also argues that appellate counsel was ineffective for not raising the issue of the judge's refusal to charge third-degree theft from the person, N.J.S.A. 2C:20-2(b)(2)(d), as a lesser-included charge of robbery. The question considered when charging a lesser crime is whether there is a rational basis on which the jury could acquit the defendant of the greater charge and convict on the lesser. State v. Jenkins, 178 N.J. 347, 361 (2004). The robbery occurred in the hallway of a rooming house. The police apprehended defendant and the co-defendant in the rooming house and recovered a sword with defendant's fingerprints on it on the ground outside the building. The victim testified that he had been threatened by that particular sword and the co-defendant identified the sword as the weapon used to rob the victim.

Because no rational basis existed in the evidence to convict defendant of the lesser charge, we would not have reversed defendant's robbery conviction for failure to charge the lesser-included offense if that issue had been raised on appeal. "There being no reversible error," defendant cannot show a reasonable probability that the outcome of his appeal would have been different but for appellate counsel's silence on this point. Echols, supra, 199 N.J. at 361.

C.

Defendant also argues that appellate counsel was ineffective in not raising the issue of the judge's questioning of the victim. The victim testified through an interpreter and seemed to have difficulty understanding the questions. He also appeared hesitant to admit that he was willing to engage the services of a prostitute. The judge cautioned the jury about the limited purpose of his questions. A judge is permitted to ask questions to clarify testimony. State v. Belliard, 415 N.J. Super. 51, 86 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011). This is true when a witness is in distress. State v. O'Brien, 200 N.J. 520, 534 (2009) (citation omitted). The issue of the judge's questioning was raised on appeal in the context of his asking questions of the co-defendant. We did not find that questioning to be an abuse of discretion. Mateo, supra, slip op. at 3-5. The judge's questioning of the victim was more limited and also was not an abuse of discretion.

A defendant is not entitled to a perfect trial or a perfect appeal. State v. Feaster, 156 N.J. 1, 84 (1998), cert. denied sub. nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We are convinced that defendant received professional and competent appellate representation.

Affirmed.

1 In a supplemental hand-written letter brief, defendant argues that the No Early Release Act (NERA) violates the double jeopardy clause of the United States Constitution. U.S. Const. amend. V. This argument, which is based on the Double Jeopardy Clause, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3 Defendant argues in his brief that the judge erred by not discussing "possible defenses" with him, but fails to state what defenses should have been explained. As the jury trial was conducted by counsel, defendant had the assistance of counsel to determined which defenses were appropriate.