STATE OF NEW JERSEY v. JONATHAN HUERTAS

NOT FOR PUBLICATION WITHOUT THE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.

JONATHAN HUERTAS,
 

Defendant-Appellant.

______________________________
 

March 31, 2014

Submitted March 10, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-01-0059.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A.

Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jonathan Huertas appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Indicted for murder, attempted murder and three weapons offenses, defendant pled guilty to the lesser offense of aggravated manslaughter, N.J.S.A. 2C:11-4a(1). The plea was entered pursuant to an agreement whereby the State would recommend dismissal of the remaining counts and a sentence of seventeen years subject to the parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. At the plea hearing, defendant admitted under oath that he was involved in an altercation on September 9, 2003, in Passaic when he shot in the direction of the people with whom he was confronted, and a person who was not involved in the fight was struck and killed by a bullet from the .357 handgun revolver fired by defendant.1 Defendant knew there was a substantial likelihood that someone could be killed by his actions, which, by his own admission, exhibited an extreme indifference to the value of human life.

Defendant was sentenced in accordance with the plea agreement to a seventeen-year term with an eighty-five percent parole ineligibility bar. We upheld his sentence on our Excessive Sentencing Oral Argument Calendar.

Defendant filed a timely PCR petition in which he alleged ineffective assistance of plea counsel who, he claims, failed to file a motion to dismiss the indictment; did not adequately communicate with defendant; did not review the discovery with defendant; and did not advise defendant of the fact that no blood or tissue was found on the recovered .357 bullet. Due to counsel's deficient performance, defendant claimed that his plea was not knowing, voluntary and intelligent.

Although not granted a full evidentiary hearing, defendant was allowed to testify during argument on his PCR petition. Defendant stated that he pulled his gun after his opponent pulled his gun, that he did not intend to shoot anybody, and that he fired into the air. He was never advised by counsel of the results of the laboratory examination of the recovered bullet, and that, had he been advised of this fact, he would not have accepted the plea offer. According to defendant, defense counsel advised him that, if he went to trial, the jury would be tainted by the evidence of gang activity. Counsel's performance convinced defendant that counsel did not want to try the case, and defendant believed that his only remaining option was to accept the plea.

Following argument, the PCR judge denied defendant's petition. The judge rejected defendant's claims that counsel was ineffective, finding that, at the time of his guilty plea, defendant stated he was satisfied with the services of his attorney and was entering into the plea voluntarily and of his own accord. The judge also ruled that a motion to dismiss the indictment based on the lack of blood or tissue on the recovered bullet would not have been successful and, in any event, was waived by defendant's guilty plea.

On appeal, defendant argues that he established a prima facie showing of ineffective assistance of counsel and was therefore entitled to a full evidentiary hearing. We disagree, and accordingly affirm for the reasons stated by Judge Reddin in his written opinion of June 29, 2011, and his supplemental oral decision rendered the same date. We add, however, only the following comments.

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, "he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 56, 58-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58 (1987). If defendant fails to establish a prima facie claim of ineffective assistance, an evidentiary hearing is not warranted. See State v. Preciose, 129 N.J. 451, 462 (1992). Here, we are persuaded that defendant has made no showing much less a prima facie case that the alleged deficiencies of counsel meet either the performance or prejudice prongs of the Strickland test.

In our view, defense counsel cannot be faulted for failing to move to dismiss the indictment since defendant has offered no reasonable basis much less the "clearest and plainest ground[,]" State v. New Jersey Trade Waste Association, 96 N.J. 8, 18-19 (1984) for doing so. Instead, defendant merely relies on the fact that a projectile found imbedded in a fence post did not contain the victim's blood or tissue. In the first place, defendant has not provided the grand jury transcript, which would have revealed the full range of evidence of defendant's guilt actually presented to the grand jury. Second, the fact that the recovered bullet did not contain blood or tissue of the victim hardly exonerates defendant, and in fact, corroborates witnesses' accounts that defendant did indeed fire gunshots in the area where the victim was killed. As the PCR court properly noted, the victim may have been struck by a different bullet fired by defendant than the one embedded in the fence post, given that all accounts, including that of defendant, were that defendant fired more than one gunshot. Lastly, defendant has offered nothing to show that the fact that no blood or tissue was found on the bullet recovered from the post proves that the bullet did not strike the victim. For these reasons then, a motion to dismiss the indictment would have been futile and counsel therefore was not ineffective in failing to make such a challenge.

Defendant's other claims of ineffective assistance of counsel fare no better as they are based on vague, bald assertions lacking any factual support in the record. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). So, for instance, defendant's claims that defense counsel did not adequately communicate or review discovery with him are belied by the extensive voir dire of defendant by the trial court regarding his desire to plead guilty, in which defendant never expressed any reservations about counsel's performance and, quite the contrary, indicated he was entering the guilty plea knowingly and of his own accord.

Lastly, even assuming, as defendant claims, that counsel advised him that a jury would be tainted by the mention of "gang activity," we discern no deficiency in rendering such advice. Under the particular circumstances of this case, evidence of gang membership may have been admissible. See, e.g., State v. Goodman, 415 N.J. Super. 210, 225, 228-30 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). In his own statement, defendant acknowledged that he went to the scene armed with a .357 caliber handgun for protection because he was going to resolve some issues with some Latin King members from Passaic. Indeed, here there appears to be no other evidence to establish motive or to explain the shooting other than the gang-related testimony. Ibid.; see also State v. Cofield, 127 N.J. 328, 336, 338 (1992). Defense counsel thus performed well within the range of attorney competence in advising defendant of this possibility.

1 A Passaic County Police Department report submitted to the PCR court revealed that when recovered, the .357 revolver had two chambers with spent rounds, three live rounds and one empty chamber. Ballistics analysis of a bullet recovered from a wooden banister at the scene confirmed that the bullet in the banister was fired from the .357 revolver. There was no evidence of blood or tissue on the projectile.