STATE OF NEW JERSEY v. JULIO C. HENRIQUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO C. HENRIQUEZ,

Defendant-Appellant.

__________________________________

September 26, 2016

Submitted September 19, 2016 Decided

Before Judges Sabatino and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-0206.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Julio C. Henriquez, appeals from a December 12, 2013 order denying his petition for post-conviction relief (PCR). He presents these points for our consideration

POINT ONE

THE PCR COURT ERRED IN DENYING HENRIQUEZ AN EVIDENTIARY HEARING DESPITE THE FACT THAT HENRIQUEZ DEMONSTRATED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Henriquez Contends That Appellate Counsel Was Ineffective In Not Arguing That The Sentencing Court Failed To Apply Appropriate Mitigating Factors.

B. Henriquez Contends That Appellate Counsel Was Ineffective In Failing To Argue That The Sentencing Court Erred In Finding Certain Aggravating Factors.

C. Henriquez Contends That Appellate Counsel Was Ineffective In Failing To Argue On Appeal that His Sentence Was Disproportionate To The Sentence Received By His Codefendant.

D. Henriquez Contends That Appellate Counsel Was Ineffective In Failing To Argue That The Sentencing Court Erred in Applying Consecutive Sentences.

POINT TWO

THE PCR COURT ERRED WHEN IT FOUND THAT HENRIQUEZ WAS PROCEDURALLY BARRED FROM ARGUING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO DISMISS THE INDICTMENT BEFORE TRIAL AND THAT APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE ON APPEAL.

Having considered defendant's arguments in light of the record and controlling legal principles, we conclude defendant did not establish a prima facie case of ineffective assistance of counsel. For that reason, we affirm the order denying his PCR petition.

A jury found defendant guilty on three counts of second-degree aggravated assault and a judge sentenced him on each count to a five-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the sentences to run consecutively. In our opinion affirming defendant's convictions and sentence on direct appeal, we recounted the facts underlying his convictions

The charges against defendant arose out of a street battle between two large groups of combatants that occurred in Perth Amboy on August 29, 2006. Defendant and one other individual in his group were armed with guns. Apparently no one in the other group possessed guns. Defendant and his compatriot fired a barrage of shots. Two individuals in the other group and one individual in defendant's group were struck by the gunfire. None of the wounds were lethal.

The investigation quickly led to defendant, and at about 6:30 p.m. on the evening of the shooting, police arrested him as he was leaving his home. He had a loaded handgun on his person. Defendant was placed under arrest and taken to the Perth Amboy police station. He was detained there until September 1, 2006. During that time, he was kept in a holding cell and, from time to time, taken to an interview room in the detective bureau, where he was questioned.

Defendant does not dispute that the police explained to him his Miranda1 rights before each statement he gave, and that he understood his rights and signed a form acknowledging that he waived them and agreed to speak to the police. He asserts, however, that his statements were not voluntary due to coercion by the police. Defendant provided the police with three statements. The first two were tape recorded, and the third was videotaped. It was in the third statement that defendant confessed to his involvement in the incident.

[State v. Henriquez, No. A-4492-08 (App. Div. June 20, 2011) (slip op. at 3-4), certif. denied, 209 N.J. 99 (2012).]

Three months after the Supreme Court denied certification, defendant filed a PCR petition in which he made, among other arguments, the same arguments he now makes on appeal. The trial court rejected defendant's arguments and denied his PCR petition in a December 12, 2013 order and accompanying written decision. The court determined defendant's PCR challenge to his sentence was procedurally barred because he had raised the same challenge on direct appeal, and the Appellate Division had rejected it. The court further determined that defendant's argument concerning the grand jury was untimely, and in any event, any error in the grand jury proceeding was rendered harmless by the guilty verdicts at trial.

On appeal, defendant argues the attorney who filed his direct appeal was ineffective for failing to make the following arguments: the trial court failed to apply appropriate mitigating factors and misapplied aggravating factors at sentencing; defendant's sentence was disproportionate to a co-defendant's sentence; and, the sentencing court erred by imposing consecutive sentences. Defendant also argues his trial counsel was ineffective for failing to move to dismiss the indictment before trial and his appellate counsel was ineffective for failing to raise this issue on appeal.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima facie claim of ineffective assistance of counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). These principles apply as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013) (citation omitted). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In this case, defendant has failed to sustain that burden.

Defendant first argues his appellate counsel was ineffective for failing to raise four issues concerning his sentence. Defendant's arguments concerning appellate counsel's failure to raise issues concerning aggravating and mitigating sentencing factors have no merit. Although appellate counsel did not precisely frame these issues in defendant's brief's point headings, we addressed them

We are also satisfied that the judge's findings regarding aggravating and mitigating factors are well supported by the record, that the judge correctly applied the sentencing principles set forth in the Code of Criminal Justice, and that the overall sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion.

[Henriquez, supra, No. A-4492-08 (slip op. at 12).]

Equally significant, the trial court imposed a five-year custodial term on each offense, the low end of the range for a second-degree crime, N.J.S.A. 2C:43-6(a)(2); and aggravating and mitigating factors notwithstanding, defendant was subject to the minimum parole ineligibility terms imposed by NERA, N.J.S.A. 2C:43-7.2(a),(b), and (d)(4).

In view of these considerations, we fail to discern how appellate counsel raising issues concerning aggravating and mitigating factors could have affected the outcome of defendant's sentencing proceeding. Defendant has not only failed to establish the second Strickland prong, he has failed to even argue how appellate counsel's omission could have affected the outcome of either his sentence or his direct appeal.

Defendant's contention appellate counsel failed to raise an argument concerning consecutive sentences is simply erroneous. In a point heading in his appellate brief, Defendant expressly raised the issue

POINT TWO THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

[Ibid.]

In our previous opinion, we acknowledged "defendant challenges . . . the propriety of his sentence." Id. (slip op. at 2). We rejected defendant's argument concerning consecutive sentences. Id. (slip op. at 11).

Nor do we find merit in defendant's argument that appellate counsel was ineffective in failing to argue defendant's sentence was disproportionate to a co-defendant's sentence. "Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996). Nevertheless, "'[a] sentence of one defendant not otherwise excessive is not erroneous merely because a codefendant's sentence is lighter.'" Ibid. (alteration in original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). When considering the imposition of disparate sentences, a "trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233.

In the case before us, defendant has failed to establish that his case and that of co-defendant are substantially similar regarding all relevant sentencing criteria. The most obvious dissimilarity is that co-defendant pled guilty to a single count of aggravated assault and was sentenced in accordance with a plea agreement. Defendant was found guilty by a jury of three counts of aggravated assault and had no agreement with the State concerning his sentence. Defendant's argument is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

In his second point, defendant argues that both trial counsel and appellate counsel were ineffective because trial counsel failed to file a pre-trial motion to dismiss the indictment, and appellate counsel failed to raise the issue on appeal. Defendant asserts the indictment was defective because "the grand jury was not instructed on the law of justification and the use of deadly force." We reject defendant's argument.

A "jury's verdict, after appropriate instruction, represents a finding beyond reasonable doubt that defendants [are] guilty of the offense." State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995). For that reason, "even if the grand jury instructions were erroneous, the error was rendered harmless by the subsequent guilty verdict." Ibid. (citing United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941-42, 89 L. Ed. 2d 50, 56-58 (1986)); accord State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986). Neither defendant's trial counsel nor his appellate counsel were ineffective for failing to file a meritless motion or make a meritless argument.

Affirmed.

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