STATE OF NEW JERSEY v. ANGEL HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE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.

ANGEL HERNANDEZ, a/k/a ACE,

Defendant-Appellant.

____________________________________

September 13, 2016

Submitted April 11, 2016 Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-01-0121.

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

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, SpecialDeputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Angel Hernandez appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For reasons that follow, we remand the petition for an evidentiary hearing.

Defendant was convicted by a jury of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). He was sentenced on the first-degree murder conviction to life in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which requires parole disqualification for 85% of the sentence; a consecutive twenty-year term, also subject to NERA, for conspiracy to commit murder; and a concurrent five-year term for the unlawful possession of a firearm.

Defendant appealed. We affirmed his convictions and sentence in an unpublished opinion. State v. Hernandez, No. A-5816-07 (App. Div. Aug. 17, 2011). The Supreme Court granted certification, but later determined certification was improvidently granted and dismissed the appeal. State v. Hernandez, 213 N.J. 527 (2013).

The facts underlying defendant's convictions were set forth in our earlier opinion.

At 4:45 a.m. on August 31, 2004, Trenton police found Alex Ruiz, badly injured and wearing only underwear, near a Route 29 entrance ramp. He appeared to have been strangled and was in a coma by the time police brought him to the hospital. Later that morning, Jeri Lyn Dotson's daughter reported to a neighbor that her mother was dead. The police arrived and found Dotson "at the bottom of the basement stairs, lying on her back in a pool of blood." She died from a gunshot wound to the back of the head only hours before.

Prior to the summer of 2004, Ruiz was a member of a Trenton gang called the Netas. Although Ruiz was a Neta, Jose Negrete, the leader of the Trenton Latin Kings (Kings), invited Ruiz to join the Kings. Ruiz agreed.

Disassociated Neta members must survive a savage beating known as a "beatdown." Unbeknownst to Ruiz, Negrete had surreptitiously agreed to allow the Netas to abduct Ruiz for a beatdown. Believing that the Netas would kill Ruiz, Negrete was surprised to learn later that day that Ruiz had survived the beatdown. Intending to "take care of it," Negrete ordered several Kings to abduct Ruiz from Dotson's house and kill him that night.

The men went to Dotson's house and forced Ruiz into their car. After strangling him with wire, the men left Ruiz for dead in a dumpster on Duck Island. Ruiz, however, survived and crawled to the Route 29 entrance ramp where police found him.

After the Kings reported Ruiz dead, Negrete learned that Dotson had witnessed the abduction. Fearing that she would inform police, Negrete ordered defendant, Joey Martinez, Jose Maldonado, and Maurice Young to kill Dotson. According to defendant, Negrete threatened to kill him if he did not kill Dotson.

Defendant, Maldonado and Young entered the Dotson residence at about 3:00 a.m. Defendant told Dotson to go to the basement to get laundry. Young attempted to shoot her but his gun jammed. Defendant quickly grabbed a gun out of a nearby cabinet, and shot Dotson in the back of the head.

Police arrested defendant on February 25, 2005 for the murder. He signed a written confession in police custody on February 27, 2005.

Defendant filed this PCR petition on January 22, 2013, claiming ineffective assistance of counsel because his counsel failed to object to the judge's charge to the jury, which included both an alibi and a duress defense.1 Defendant asserts the defenses were inconsistent and prejudiced his case.

On August 13, 2014, the PCR court denied defendant's PCR petition following oral argument, but without an evidentiary hearing. The PCR judge's written decision found defendant had not met either prong of the test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defenses of duress and alibi were discussed at trial and allowed to go forward by the judge, without objection by counsel, because there was sufficient evidence to support either defense. The PCR judge found this "strategy [was] not objectively unreasonable". Because of this, he could not say that counsel's performance was deficient or that defendant was prejudiced by the competing defense theories.

Defendant presents the following issue for our consideration on appeal.

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS, IN THAT MUTUALLY EXCLUSIVE DEFENSE THEORIES WERE PRESENTED TO THE JURY.

We agree that the matter should be remanded for an evidentiary hearing. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42, 58 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

In State v. Preciose, 129 N.J.451, 462 (1992), the Court held that "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of [the PCR petition]." If, "view[ing] the facts in the light most favorable to the defendant," the petition has a reasonable probability of succeeding on the merits, "then the defendant should ordinarily receive an evidentiary hearing." State v. Jones, 219 N.J.298, 311 (2014). The application must be supported by "specific facts and evidence supporting [the] allegations." State v. Porter, 216 N.J.343, 355 (2013).

Defendant's trial counsel presented two competing defense theories to the jury: duress and alibi. One defense, "alibi," placed defendant at home on the night of the murder, while the duress defense acknowledged his commission of the murder, but explained it was based on a direct order from one of the Latin Kings, with defendant's death being the consequence should he fail to obey. We are not able to ascertain, without an evidentiary hearing, whether the presentation of these seemingly inconsistent defenses was the result of a dereliction by trial counsel or a strategic decision. The PCR court was persuaded to allow the inconsistent defenses because there was evidence to support both defenses. However, there was no evidence that the decision to proceed in this manner was an actual strategy or a failure by counsel to appreciate the potential effect on the jury of defenses that could not be integrated. Duress simply "reduce[s] the degree of crime to manslaughter," N.J.S.A.2C:2-9(b); it will not result in defendant's acquittal whereas "alibi" is a defense to the crime.

As for Strickland's prejudice prong, "there is much respectable opinion to the effect that jurors are put off by [an alternative defense] and regard it with suspicion." Middleton v. Roper, 455 F.3d 838, 849 (8th Cir. 2006) (quoting Weekley v. Jones, 76 F.3d 1459, 1463 (8th Cir. 1996) (en banc)). At the hearing, the PCR court should explore whetherthe simultaneous assertion of the two defenses prejudiced the credibility of defendant's case before the jury, creating the reasonable probability of a different result.

We conclude that defendant's further arguments are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

1 Defendant raised two other issues in his petition which he did not appeal. Those issues are not then the subject of this remand.