STATE OF NEW JERSEY v. DAGOBERTO GUTIERREZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

DAGOBERTO GUTIERREZ,

Defendant-Appellant.

_____________________________________

February 14, 2014

Submitted January 6, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-11-4478.

Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dagoberto Gutierrez appeals from an order entered by the Law Division on March 9, 2012, which denied his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Camden County Indictment No. 04-11-4478, with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one, two and three); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count four); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count five); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six). Defendant moved to suppress the statement he gave to law enforcement. The trial court denied the motion.

Defendant was tried before a jury. At the trial, the State presented evidence that, in the period from May 2003 to September 2004, defendant resided with F.R. and her daughter M.R., who was then eight years old. In September 2004, M.R. approached F.R. and reported that defendant had touched her vagina, put his penis on the "front" and in the "back," and rubbed the "front." M.R. said that defendant made her put his penis in her mouth.

F.R. contacted the local police, and an investigator interviewed M.R., F.R. and M.R.'s brother. In the interview, M.R. recounted an extensive history of sexual abuse. M.R.'s brother also indicated that he had observed defendant pull M.R. into bed one morning. He said he had seen defendant touch M.R.'s buttocks with his hands while she was sleeping on a couch. He also said that he had seen defendant try to put "his thing" into M.R.'s "butt."

Based on these interviews, defendant was arrested and taken to the prosecutor's office. Defendant was provided with a form setting forth his Miranda1 rights in Spanish. The form also was read to defendant in Spanish. Defendant indicated that he understood the form and he signed the card, waiving his rights.

Defendant told the investigators that he had sexual contact with M.R. He acknowledged that his penis had entered M.R.'s vagina on three occasions, and that he had touched the outside of M.R.'s vagina with his finger. He also admitted placing his penis in M.R.'s buttocks several times.

M.R. testified that defendant touched her private parts, and placed his penis in her vagina and anus. M.R. said defendant had inserted his finger into her vagina. She stated that defendant had engaged in these actions more than twenty times, and he had done so against her will.

The jury found defendant guilty of the lesser-included offense of second-degree sexual assault (count one), first-degree aggravated sexual assault (count two), and second-degree endangering the welfare of a child (count six). The jury found defendant not guilty on counts three, four and five.

The court sentenced defendant to six years of incarceration on count one, with a period of parole ineligibility as provided by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a consecutive term of sixteen years on count two, with a NERA period of parole ineligibility. Defendant also was sentenced to a concurrent eight years of incarceration on count six.

The court ordered that defendant was subject to community notification under Megan's Law, N.J.S.A. 2C:7-2 to -23, and to community supervision for life under N.J.S.A. 2C:43-6.4. The court further ordered defendant to serve specified periods of parole after his release from incarceration, pursuant to N.J.S.A. 2C:43-7.2(c). The court additionally required defendant to provide a DNA sample, and imposed appropriate monetary penalties and assessments.

Defendant appealed from the judgment of conviction entered by the trial court on January 29, 2007. He raised the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MIRANDA MOTION

POINT II

THE COURT FAILED TO ORDER A BILL OF PARTICULARS (NOT RAISED BELOW)

POINT III

THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE THE VIDEO TAPE OF THE VICTIM'S STATEMENT

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE AN IRRELEVANT AND PREJUDICIAL PORTION OF THE VICTIM'S VIDEOTAPE

POINT V

THE TRIAL COURT ERRED BY CONTINUING TO ALLOW WITNESS [JANENE] BAHR TO ARGUE WITH DEFENSE COUNSEL CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHTS

POINT VI

THE TRIAL COURT ERRED IN ITS TREATMENT OF THE FRESH COMPLAINT ISSUE (NOT RAISED BELOW)

POINT VII

IT WAS ERROR ON THE PART OF THE TRIAL COURT TO PERMIT WITNESS [KIMBERLY] JENNINGS TO TESTIFY OVER DEFENDANT'S OBJECTION

POINT VIII

THE TRIAL COURT ERRED IN THAT IT DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL IN THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT IX

THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE IN ERROR (PARTIALLY RAISED BELOW)

POINT X

THE TRIAL COURT ERRED BY ALLOWING CERTAIN PROSECUTORIAL REMARKS WHICH WERE IMPROPER

POINT XI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED; THE AGGRAVATING AND MITIGATING FACTORS WERE NOT PROPERLY ADDRESSED BY THE COURT WHICH WAS ERRONEOUS.

We concluded that defendant's arguments were without merit and affirmed his convictions and the sentences imposed. State v. Gutierrez, Docket No. A-4480-06 (July 1, 2009). Defendant filed a petition for certification, seeking review of our judgment. The Supreme Court denied the petition. State v. Gutierrez, 200 N.J. 475 (2009).

II.

Thereafter, defendant filed a pro se petition for PCR, in which he alleged that he was denied the effective assistance of trial counsel; the accumulation of counsel's errors required an evidentiary hearing; and the assistant prosecutor "misused" his position by "coaching" the informant and defendant's former cellmate, after the assistant prosecutor read certain information provided by defense counsel. The trial court appointed PCR counsel for defendant.

In a letter dated February 21, 2011, PCR counsel informed the court that, with the aid of an interpreter, he had conferred with defendant and defendant directed him not to file any additional materials with the court. Counsel stated that defendant would be relying solely upon the pro se submission.

At the hearing on March 9, 2012, PCR counsel confirmed that he was relying on defendant's pro se brief, and he would address any issue if requested. The court questioned defendant, with the assistance of an interpreter. Defendant informed the court that he wanted to rely upon the brief he had submitted. After initially denying that he had done so, defendant conceded that he told his attorney not to file another brief.

The PCR court placed its decision on the record. The court determined that defendant had not presented a prima facie case of ineffective assistance of counsel and denied the petition without a hearing. The court entered an order dated March 9, 2012, denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

I. GUTIERREZ WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS UNDER THE U.S. CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

II. GUTIERREZ'S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE ASSISTANCE OF EFFECTIVE COUNSEL WITH RESPECT TO HIS POST-CONVICTION RELIEF PETITION (Not Raised Below).

III. CUMULATIVE ERRORS DENIED GUTIERREZ HIS RIGHT TO A FAIR TRIAL.

IV. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY GUTIERREZ.

III.

Defendant argues that the PCR court erred by finding that he failed to present a prima facie case of ineffective assistance of counsel. We disagree.

A defendant's claim of ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under our State Constitution.

In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists 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.

Here, defendant claims that trial counsel's cross-examination of M.R. was "woefully inadequate." He says that M.R.'s testimony was "obvious and blatantly unreliable." Defendant asserts that his trial attorney should have retained an expert "to explain the utter lack of reliability of M.R.'s testimony." According to defendant, an expert would have testified about M.R.'s ability "to understand the difference between telling the truth and telling a lie." Defendant contends that such expert testimony would have materially affected the outcome of the trial.

These contentions are without merit. As the PCR court noted in its decision, defendant failed to present any affidavit or certification setting forth the testimony an expert would have provided, if an expert had been retained. The PCR court correctly noted that defendant's claim regarding the expert testimony amounted to little more than an unsupported, bald assertion, which is insufficient to establish the ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

The PCR court also correctly determined defendant had not established that he was prejudiced by defense counsel's failure to retain an expert witness for trial. The court pointed out that defendant had not shown that counsel's alleged deficiency materially contributed to his conviction, or in any way undermined the result of the trial, "especially in light of the [d]efendant's confession to the crimes." The record clearly supports the court's finding.

Defendant further argues that he was denied the effective assistance of PCR counsel. He contends that counsel erred by choosing to rely solely upon his pro se submissions. Again, we disagree. Here, defendant criticizes his PCR counsel for failing to make "any attempt" to present what defendant asserts are "legitimate PCR claims." However, defendant did not present any legitimate claim warranting PCR.

Moreover, at the hearing on the petition, PCR counsel advanced all of the arguments that defendant presented in his pro se petition, in accordance with State v. Rue, 175 N.J. 1 (2002), and State v. Webster, 187 N.J. 254 (2006). Simply put, defendant's claims of ineffective assistance of trial counsel were meritless, and the result would not have been different if PCR counsel had presented defendant's petition differently.

Defendant also contends that PCR should have been granted because of trial counsel's numerous "failures" which allegedly amounted to ineffective assistance of counsel. Defendant contends that each of these errors had the capability of contributing "materially" to his conviction. He further argues that appellate counsel's failure to raise these issues constituted ineffective assistance of appellate counsel. These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

In addition, defendant contends that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).