STATE OF NEW JERSEY v. DEBRA A. AQUILINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A 02184-14T3

A-2886-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEBRA A. AQUILINA, a/k/a DEBRA

LUDVIK, a/k/a DEBRA SAKEVICH,

a/k/a DEBRA VITARO, a/k/a

DEBRA AQYUKUBA,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK AQUILINA,

Defendant-Appellant.

________________________________________________________________

October 4, 2016

Submitted April 19, 2016 Decided

Before Judges Espinosa and Currier.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1857.

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

Joseph E. Krakora, Public Defender, attorney for appellant Mark Aquilina (William Welaj, Designated Counsel, on the brief).

Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondents (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the briefs).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant Debra Aquilina and her son, defendant Mark Aquilina, appeal from the denial of their petitions for post-conviction relief without an evidentiary hearing.1 We affirm.

Defendants were tried separately and convicted of first-degree murder of Debra's husband, Ralph Ludvik, Jr., N.J.S.A. 2C:11-3, conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, third-degree drug offenses, N.J.S.A. 2C:35-10a(1), and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1).

We affirmed both defendants' convictions and remanded for the merger of two counts in unpublished opinions: State v. Aquilina, No. 0656-09 (Jan. 19, 2012), certif. denied, 210 N.J. 479 (2012) (Debra's appeal) and State v. Aquilina, No. 4151-07 (Mar. 31, 2011), certif. denied, 208 N.J. 338 (2011) (Mark's appeal). The facts underlying defendants' convictions are set forth in our opinions and need not be repeated here.

We briefly review the applicable principles of law. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both 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.

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. We "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Castagna, 187 N.J. 293, 314-15 (2006) (citation omitted).

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, l58 (1997) (citations omitted).

Debra's PCR Petition

Debra alleged she was denied the effective assistance of counsel on various grounds. Among her allegations, Debra contended her counsel was ineffective for: failing to present expert testimony from a forensic pathologist to dispute the manner of death and pressuring her not to testify despite her desire to do so. Following oral argument, the PCR judge denied the petition without conducting an evidentiary hearing, concluding Debra had failed to present a prima facie case of ineffective assistance of counsel.

Debra presents the following arguments in her appeal

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial counsel failed to have an exculpatory expert witness testify.

B. Trial counsel induced defendant not to testify.

As set forth in greater detail in our opinion in Debra's direct appeal, the medical examiner, Dr. Sunandan Singh, originally concluded that Ludvik's death was the result of an accidental drug overdose. After Mark, who was incarcerated on unrelated charges, confided to a fellow inmate that he had committed the perfect murder, the investigation was reopened. Mark ultimately provided a full confession in which he described the conspiracy among him, Debra and a third person, James Gerritsen. At trial, Dr. Singh testified that after reading Mark's statement, he changed his original conclusion that Ludvik's overdose was accidental and concluded the death was a homicide.

The exculpatory expert witness who is the subject of Debra's argument is Mark L. Taff, M.D. A review of Dr. Taff's report confirms the PCR judge's conclusion that, even if called as a witness, Dr. Taff would not have refuted the manner of death. Dr. Taff agreed that Ludvik died as a result of his intoxication after ingesting multiple drugs. His report stated, "If not for the statements of Mark Aquilina and James Gerritsen, the manner of death would have been classified as an accident." That is precisely the conclusion Dr. Singh made before Mark disclosed the murder plot. There is no evidence Dr. Taff provided an opinion that refuted homicide as the manner of death after considering the details in Mark's confession. As a result, no cognizable advantage to defendant was lost as a result of counsel's failure to call him as a witness.

Moreover, as the PCR judge observed, counsel challenged Dr. Singh's change in opinion on cross-examination and argued to the jury that the manner of death was accidental and not a homicide. Counsel's decision to pursue the issue regarding whether the death was a homicide or an accident in this way reflected a strategic choice that does not demonstrate a deviation from "reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. We agree with the PCR judge that this argument does not present a prima facie case of ineffective assistance of counsel under the relevant standard.

The second argument advanced by Debra is that her counsel was ineffective because he pressured her not to testify at trial. In her certification, she stated she told her attorney that she wished to testify and that she would have testified regarding her son's life-long psychological problems, long-term substance abuse, and his history of not telling the truth. Notably, she does not state she would have asserted her innocence if she had testified.

As the PCR judge observed, the trial judge conducted a detailed voir dire of Debra regarding her decision not to testify at trial. The record reflects that she was advised of her rights, had adequate consultation with counsel, and freely and voluntarily waived her right to testify. Again, we agree with the PCR judge that Debra failed to make the requisite showing of ineffective assistance based upon this argument.

In sum, Debra failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test, and the PCR judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63. Therefore, we affirm the denial of her PCR petition without an evidentiary hearing.

Mark's PCR petition

Mark also alleged that his trial counsel rendered ineffective assistance of counsel. Among his allegations, he argues his attorney failed to advise him adequately regarding his decision not to testify at trial and failed to present expert testimony to support the argument that his confession was false. The PCR judge denied the petition without an evidentiary hearing, concluding Mark had failed to make a prima facie showing of ineffective assistance of counsel.

Mark presents the following arguments in this appeal

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HER FAILURE TO THOROUGHLY DISCUSS WITH HER CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH HE DID NOT TESTIFY IN HIS OWN DEFENSE.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY AT TRIAL WITH RESPECT TO THE DEFENDANT'S FALSE CONFESSION.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

We are not persuaded by any of these arguments.

Mark testified during the hearing on his motion to suppress his statement. In the certification he submitted in support of his PCR petition, Mark stated his attorney failed to adequately prepare him for that testimony and that this lack of preparation caused him to perform poorly. He contended he did not testify at trial, despite his professed innocence, because his attorney "never discussed" with him "testimony that might have been elicited" if he testified, "generalities regarding giving trial testimony," "what questions she would ask," "what topics trial counsel would cover" and did not prepare him for cross-examination. He said that he ultimately did not testify "because of trial counsel's failure to go over the discovery with [him], coupled with trial counsel's lack of preparation on [his] case."

The PCR judge reviewed the colloquy between Mark and the trial judge, in which the judge advised him regarding his options: (1) to testify and be subject to cross-examination, (2) to rely upon his right not to testify, and (3) to choose or forego an instruction on his election not to testify. Mark stated he understood the options. At the end of testimony that day, Mark advised the trial judge he decided not to testify and did not want the court to charge the jury regarding that election. Mark further confirmed he had adequate time to discuss the decision with trial counsel, that he was satisfied with counsel's advice and had made the decision freely and voluntarily. The PCR judge found that defendant, who was not a neophyte in the criminal justice system, made the decision not to testify freely and voluntarily and that his failure to testify did not reflect a denial of the effective assistance of counsel.2 We agree.

Mark also argues his counsel was ineffective in failing to present expert testimony to show his confession was false, the product of coercion. The PCR judge found this argument procedurally barred pursuant to Rule 3:22-5 because defendant argued at both the suppression hearing and at trial that his confession was false. In his direct appeal, he also argued the trial court erred in admitting his statements on the ground that he did not voluntarily and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The PCR judge also addressed this argument on its merits and found Mark failed to present a prima facie case that his counsel had been ineffective. The purported expert opinion in this case came in a report by Dr. Daniel P. Greenfield, who interviewed Mark and concluded his statement was a "Coerced-Compliant False Confession." However, Dr. Greenfield's opinion was explicitly predicated upon the assumption that Mark did not participate in the killing of his stepfather. His report included the following

[R]ecognizing and accepting that the true test of whether Mr. Aquilina's "confessions" were "false" depends, obviously, on whether he truly did kill (or participate in the killing of) his stepfather, it is nevertheless my professional psychiatric/neuropsychiatric/

addiction medicine opinion . . . that the condition and circumstances of Mr. Aquilina's statements are plausible accounts of his having giving [sic] a false confession . . . on the one hand, and on the other that the conditions and circumstances, similarly, of the statements are consistent with a false confession (assuming, of course, that Mr. Aquilina's [sic] did not kill or participate in Mr. Ludvik's slaying: If he did, then his statements would be "true," not "false").

[(Emphasis added).]

The probative value of this opinion is nil. Clearly, the PCR judge did not err in concluding Mark failed to present a prima facie case of ineffective assistance of counsel based on this argument.

In sum, we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test and that the PCR judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.

1 The appeals were calendared back-to-back and are consolidated for the purpose of writing one opinion.

2 The PCR judge also rejected Mark's claim that his attorney failed to review discovery with him as refuted by his testimony during the suppression hearing that he had reviewed discovery with his attorney.