STATE OF NEW JERSEY v. AUEL MARTINEZ

NOT FOR PUBLICATION WITHOUT THE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.

AUEL MARTINEZ, a/k/a JONATHAN

MOORMAN,1

Defendant-Appellant.

___________________________________

January 14, 2014

 

Submitted December 11, 2013 Decided

 

Before Judges Waugh and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-05-0602.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Auel Martinez appeals the Law Division's March 11, 2011 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In May 2002, Martinez was indicted for first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one);2 first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b) (counts three and four); two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (counts five and six); second-degree attempted burglary, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count seven); third-degree theft, contrary to N.J.S.A. 2C:20-3 (count eight); third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree possession of an imitation firearm, contrary to N.J.S.A. 2C:39-4(e) (count ten).

On January 13, 2004, Martinez pled guilty to first-degree murder, one count of first-degree kidnapping, and second-degree attempted burglary. During the plea hearing, Martinez admitted that he attempted to enter the home of Roger Cassett3 to steal coins and "things of that nature." Although he was unable to break into the house, he was subsequently admitted by Cassett. While inside, Cassett's stepfather entered the house. Martinez tied the stepfather's hands and feet so he could not move and left him that way for several hours. He also placed an electrical cord around Cassett's neck, after which he pulled on the cord until Cassett died. He admitted that it was his intention to cause Cassett's death and that he bound the stepfather to facilitate his other crimes. Finally, Martinez withdrew his earlier allegation that Cassett had sexually assaulted him when he was a child.

On March 9, Martinez filed a pro se motion to withdraw his plea, alleging that his retained defense attorney provided ineffective assistance by failing adequately to pursue various defenses related to his alleged psychiatric condition and Cassett's alleged sexual abuse. New defense counsel was subsequently assigned to represent Cassett. After a five-day hearing, the trial judge denied the motion to withdraw the plea.

Martinez was sentenced on September 8. Although the State's recommended sentence was an aggregate sentence of life with a forty-year period of parole ineligibility, the plea judge imposed an aggregate sentence of forty-seven years subject to the eighty-five percent period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In accordance with the plea offer, the remaining charges were dismissed, as was a subsequent two-count indictment charging Martinez with second-degree child endangerment for possession of child pornography. N.J.S.A. 2C:24-4(b)(4), (5).

Martinez filed a notice of appeal through the Office of the Public Defender. However, he withdrew the appeal shortly thereafter. On September 9, 2008, Martinez sought leave to file an appeal as within time and for appointment of counsel. The motion was denied without prejudice to reconsideration upon submission of an expert's report concerning Martinez's capacity to dismiss the appeal voluntarily. No such submission was made.

Martinez filed his PCR petition on March 26, 2009. Appointed counsel filed an amended petition and supporting brief. Following oral argument on March 11, 2011, the PCR judge denied relief and dismissed the petition. This appeal followed.

II.

Martinez raises the following issues on appeal:

POINT ONE: THE PCR COURT ERRED IN DENYING MARTINEZ'S PETITION FOR POST-CONVICTION RELIEF EVEN THOUGH MARTINEZ SUCCESSFULLY DEMONSTRATED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT TWO: THE PCR COURT ERRED IN DENYING MARTINEZ'S PETITION FOR POST-CONVICTION RELIEF AS MARTINEZ DEMONSTRATED A RIGHT TO AN EVIDENTIARY HEARING TO RESOLVE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

POINT THREE: MARTINEZ INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION FOR POST-CONVICTION RELIEF, AMENDED PETITION FOR POST-CONVICTION RELIEF AND IN THE SUPPLEMENTAL BRIEF.

 

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "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. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

B.

Martinez's basic argument is that the attorney who represented him at the time of the plea, James Wronko, was constitutionally deficient because Wronko facilitated the guilty plea when he knew or had reason to know that Martinez was not telling the truth in withdrawing his allegation that Cassett had molested him.

Martinez relies on State v. Taccetta, 200 N.J. 183, 196-97 (2009), in which the Supreme Court held:

In the constellation of our values, it is intolerable for a court to be complicit in accepting a guilty plea from a defendant protesting his innocence. The integrity of our criminal justice system requires that we strive to minimize the ultimate miscarriage of justice--the conviction of an innocent person. For that reason, "[w]hen at the time of [a plea hearing] the court is expressly informed by the attorney for the accused that he claims to be innocent, a plea of guilty should be refused." State v. Reali, 26 N.J. 222, 224 (1958). Moreover, an attorney would be engaged in professional misconduct if he or she knowingly assisted a client to perpetrate a fraud on the court by assisting or encouraging a client to lie under oath. See RPC 3.3(a) ("A lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client . . .").

 

If a trial court cannot accept a guilty plea that is known to be false, then it would be strange indeed for a PCR court to vacate a jury verdict following a fair trial on the ground that defendant would have taken an advantageous plea offer with a limited sentence exposure if only he had been given the opportunity to lie under oath. A court cannot give its imprimatur to perjury or in any way suggest that the requirement of a truthful factual basis at a plea colloquy is an empty formality.

 

In Taccetta, the Court rejected defendant's argument that his trial attorney was deficient because he should have counseled him to plead guilty despite his claim of innocence. Id. at 186.

Martinez, however, does not contend that he is innocent of strangling Cassett. The factual basis Martinez gave at the plea hearing was significantly more sanitized than his second statement to the police, which was given under oath. In that statement, Martinez admitted (1) that he walked to Cassett's house with a hammer, a razor blade, and duct tape, as well as a "lighter gun"; (2) that he was wearing a bandana and intended to break into the house to surprise Cassett; (3) that when he was unable to do so, he eventually rang the doorbell and was admitted by Cassett; (4) that he told Cassett that his father had kicked him out of the house and asked to stay there for a few nights; (5) that he then pulled out the lighter gun; (6) that they argued for a while, after which he tied up Cassett with duct tape so as "to cut the circulation off . . . just to get at him"; (7) that they talked while he gathered up Cassett's money "to hit him where it hurts"; (8) that he told Cassett "he would live to see the morning"; (9) that, after Cassett's stepfather arrived and he was unable to get rid of him, he put the gun to the stepfather's face and "cocked it," after which he tied up the stepfather; and (10) that he then went upstairs and took another container of change.

With respect to the actual homicide, Martinez admitted that, after he came back downstairs, he "put [his] foot right between [Cassett's] shoulder blades, and [] doubled the wire and put it through the loop and pulled it like a yoke, like a chain and kept [his] foot between [Cassett's] shoulder blades and pulled it up," but "in a way that he wouldn't choke immediately. Rather suffer." He briefly stopped choking Cassett because he had to prevent his stepfather from getting away. Martinez then returned to Cassett, whom he had "hurt real bad by that time," again put his foot on his back and again choked him, after which he took his foot off Cassett's back and "pulled him up, until all his weight was leaning on his neck," causing him to "kick[] and shake[]" until he died. Martinez "banged [Cassett's] face into the ground a few times to make sure" he was dead. Martinez eventually left the house with the things he had stolen. In the statement, Martinez also told the police that he had been molested by Cassett when he was a child, but that he had never told anyone or written anything down about it at the time.

Finally, Martinez told the police that he had wanted a friend to help him, but needed money to pay the friend.

That's where the money came in. I knew he had those jars, and I kn[e]w each one of those jars was worth a lot of . . . a few grand. That's how I would get my friend to join me, but at the last minute he said no. I had built up enough anger at that point to, to just go do it myself, and I walked over to his house, and that was it.

 

During the hearing on Martinez's application to withdraw his guilty plea, Wronko testified that he had credited Martinez's assertion that Cassett had molested him when he was a child, but was unable to find any independent witness to support the assertion.4 He described the problem as follows:

Well, here's one of the problems that I always had with the whole issue of, was [Martinez] molested. The State presented the case under a theory that it was a straight robbery. Which, in my opinion, I thought it was a weak motive, in light of the fact that the elderly gentleman was not harmed, was left alive, to identify my client, things of that nature. The problem was, we, in effect, would be giving the jury an alternative. Albeit, a stronger motive for the murder. On the one hand, you wanted to show that this occurred. But, on the other hand, in so showing, you had to walk that fine line of giving the jury a real good reason for [Martinez] to kill this individual.

Wronko further testified that "[t]here was never a question, that [Martinez] was going to be held accountable for causing the death," but that there was "some hope" of avoiding the "purposeful issue"5 based on the allegations of sexual abuse. Nevertheless, he described it as "high risk." He acknowledged that he received discovery from the State to the effect that Cassett had an "impeccable reputation." Wronko concluded that effective use of the sexual abuse contention would have to be based on Martinez's uncorroborated testimony and characterized it as "an uphill climb." The following exchange took place during Wronko's cross-examination by the State:

Q. You're also aware, are you not, that if you put him on the stand, and he said sexual abuse, the jury thought that, they're trying to be manipulative, it could work against him, and it could very well get him the death penalty? You're aware of that, aren't you?

 

A. I believe the jury would have found it offensive, if they did not find it to have occurred.

 

Wronko testified that a defense based on sexual abuse provided "hope" of avoiding the death penalty, but nevertheless conceded that there was "very little chance of avoiding the felony murder," because Martinez had "obviously" caused the death and had kidnapped both victims and robbed Cassett. He conceded that a conviction for felony murder could result in a sentence of life imprisonment, which, under NERA, would carry a sixty-five year period of parole ineligibility. He also conceded that, if Martinez had been convicted of purposeful or knowing murder but spared the death penalty, he would have been subject to life in prison without parole if the jury found even one aggravating factor.6 Although Wronko also expressed concern about long, consecutive sentences with periods of parole ineligibility, he maintained that the felony murder charge as "the huge, huge problem."

Wronko characterized that plea condition that Martinez withdraw the sexual-abuse allegation as "an unusual one" that he was "not sure [he] had run across [] before." He testified that he told Martinez that, "if he wanted to plea, that, frankly, that didn't really mean much either way." When asked whether he told Martinez that, "if he considered it to be false, he shouldn't sign it," Wronko responded: "I explained to him, what he had to sign. I also explained to him what he had to say in open court, that the Judge would ask him about."

The trial judge, in denying Martinez's motion to withdraw his guilty pleas, found Wronko's testimony to be persuasive. He made the following findings:

So when [Martinez] entered the guilty plea he was 22 years old, born May 13th, 1982, 22 and a half. He stated in a letter to his girlfriend he intended to act insane and he did. . . . Doctor Greenfield in July, 2003 determined he was not insane or suffering from diminished capacity when he murdered his uncle in April, 2002. No mental state defense was available. He confessed to crimes in graphic detail. And you can hear the tape, I heard the tape of the confession. The evidence is so overwhelming that there is practically no likelihood to avoid conviction in some major offense, felony murder, kidnapping. His plea was clearly in his own best interest. He was facing the death penalty.

 

The aggravating factors that were filed by the prosecutor, on May 20, 2002 factor one that the murder was outrageously or wantonly vial, horrible or inhuman. That it involved the depravity of mind, torture or an aggravated assault to the victim. And that basically could be proof of that in terms of the way, the manner in which, the way the decedent was killed. This murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant. And again there's proof to be submitted as to that, that the decedent knew him and could identify him and he left the other person, did not kill the person who came in, the decedent's father or stepfather. Three, the murder was committed while the defendant was engaged in the commission of committing or attempt to commit a burglary or robbery or kidnapping. That may be a weaker one, but that is another aggravating factor. And the adequacy of representation of James Wronko and the defendant is entitled to reasonably effective assistance from counsel under the U.S. Constitution and New Jersey State Constitution. So Wronko was faced with defending the defendant charged with a brutal torture murder to which defendant confessed in graphic detail.

 

And then there's an allegation of sexual abuse which allegedly occurred years earlier, though the defendant never told anyone about that and which where there is no corroboration whatsoever, and that the defendant prodded himself as being known as Esta Fador which means con man. Wrote letters about, bragging about lying and manipulating the system and diagnosed as a malingerer by experts.

The claim of sexual abuse has little credibility. If it did, it would go to help prove purposeful, knowingly homicide and be a motive for a murder, not that defense to murder.

We find no constitutionally ineffective assistance of counsel with respect to the withdrawal of the abuse allegation in connection with the plea. The alleged sexual molestation, assuming it took place, did not negate any elements of the offenses to which Martinez pled. The factual basis given by Martinez would have been sufficient with or without it.

We presume that the State made withdrawal of the allegations a condition of the plea to clear the victim's reputation. As Wronko conceded, the past history of molestation provided a stronger motive for purposeful and knowing murder than the robbery, and it had the potential to backfire in the event the jury did not believe Martinez's uncorroborated testimony seeking to blame the victim. As noted, the trial judge, after hearing several days of testimony in connection with the motion to withdraw the guilty plea, characterized the allegation as having "little credibility" and more likely to supply a motive than a defense.

The guilty plea enabled Martinez to avoid significantly longer sentences based on his admitted conduct. His statement to the police provided support for several theories of criminal liability, including (1) that Martinez went to Cassett's house intending to kill him or that he decided to kill him after he arrived, either of which would have exposed him to the death sentence or life in prison without the possibility of parole, and (2) felony murder, which would have exposed him to a sentence of life in prison subject to a sixty-five year period of NERA parole ineligibility. In addition, because there were multiple offenses and two victims, Martinez also ran the risk of lengthy consecutive sentences subject to NERA.7 He received a sentence of forty-seven years of incarceration with a forty year period of NERA parole ineligibility.

Consequently, Wronko's representation did not result in "a guilty plea from a defendant protesting his innocence" or "the ultimate miscarriage of justice--the conviction of an innocent person." Taccetta, supra, 200 N.J. at 196. The result was a strategic decision not to present a defense about which only Martinez knew the actual truth. Even if Martinez's allegations against Cassett were true, which is by no means clear, presentation of such unsubstantiated allegations at trial could realistically have inured to his detriment, rather than his benefit, for the reasons outlined above.

A defense attorney's trial strategy is generally not second-guessed in a PCR proceeding, even if it backfires. State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988). Here, the strategic decision to withdraw the sexual-abuse allegations and plead guilty resolved the charges with a sentence more favorable than those to which he was realistically exposed. We do not consider Martinez's agreement to "withdraw" them to be an instance of the type of lying under oath that was of concern to the Court in Taccetta. A defendant is not compelled to pursue a defense that, if true, would be difficult to prove and potentially counterproductive.

We find no basis to conclude that Wronko's representation was constitutionally deficient or that it led to an unjust result. Because Martinez failed to present a prima facie case under Strickland, he was not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462-64.

Affirmed.

1 At the time of his indictment, conviction, and sentencing defendant's name was Jonathan Moorman. The notice of appeal uses the name Auel Martinez, which is how we refer to him in this opinion.

2 The State subsequently sought the death penalty.

3 Cassett is sometimes referred to as Martinez's "uncle," but it is not clear from the record whether they were related or whether this was a courtesy title. Cassett's stepfather did not appear to know who he was.

4 Wronko also testified that he had retained a psychiatrist who was unwilling to give an opinion to support defenses related to insanity or diminished capacity.

5 We understand "the purposeful issue" to be a reference to N.J.S.A. 2C:11-3(a)(1) and (2), which define purposeful and knowing murder, respectively. At the time of the homicide, defendants convicted of either were subject to the death penalty. N.J.S.A. 2C:11-3(c) (2000), repealed by L. 2007, c. 204, 1.

6 For example, given Martinez's own description of the event, a jury could well have found that the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim, N.J.S.A. 2C:11-3(c)(4)(c), or that it was committed while Martinez was engaged in a robbery or kidnapping, 2C:11-3(c)(4)(g).

7 For example, had Martinez been convicted of aggravated manslaughter and two counts of kidnapping, he would have been exposed to three consecutive thirty-year sentences with approximately seventy-six years of NERA parole ineligibility.