STATE OF NEW JERSEY v. ANGEL JIMENEZ

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-2575-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANGEL JIMENEZ,

     Defendant-Appellant.
_______________________________

              Submitted October 30, 2017 – Decided December 18, 2017

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              Nos. 05-06-0821 and 07-08-1187.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (David M. Liston,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant     Angel    Jimenez        appeals   from    the    denial    of   his

petition for post-conviction relief (PCR) without an evidentiary

hearing.    We affirm.

     On December 18, 2009, following a jury trial, defendant was

convicted of first-degree murder, 
N.J.S.A. 2C:11-3(a)(1) and (2);

third-degree      theft    by   unlawful       taking,    
N.J.S.A.     2C:20-3(a);

second-degree possession of a handgun for an unlawful purpose,


N.J.S.A. 2C:39-4(a)(1); third-degree unlawful possession of a

handgun, 
N.J.S.A. 2C:39-5(b); third-degree hindering apprehension

or prosecution, 
N.J.S.A. 2C:29-3(b)(1); third-degree hindering

apprehension or prosecution, 
N.J.S.A. 2C:29-3(b)(4); fourth-degree

possession of marijuana with intent to distribute, 
N.J.S.A. 2C:35-

5(a)(1);    and   third-degree        witness    tampering,        
N.J.S.A.    2C:28-

5(a)(1).    The jury also found defendant guilty of second-degree

certain persons offense, 
N.J.S.A. 2C:39-7(b), and acquitted him

of felony murder, 
N.J.S.A. 2C:11-3(a)(3).                Defendant was sentenced

to a term of life in prison, subject to the No Early Release Act,


N.J.S.A. 2C:43-7.2, with a condition requiring five-year parole

supervision for the murder conviction, and lesser concurrent terms

for the other convictions.

     On direct appeal, we affirmed defendant's convictions and

sentences   but    remanded     for    a    correction      of   his   judgment      of

conviction because it reflected the incorrect degree of unlawful

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taking.      The underlying facts supporting his convictions are

outlined in our opinion on direct appeal and need not be repeated

here.   State v. Jimenez, No. A-4280-09 (App. Div. Mar. 10, 2014),

certif. denied, 
219 N.J. 628 (2014).

     In this appeal, defendant raises the following issues:

           POINT I: DEFENDANT HAS SUBMITTED PRIMA FACIE
           EVIDENCE   REQUIRING    HE   BE   GRANTED   AN
           EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

           POINT II: DEFENDANT WAS DENIED EFFECTIVE
           ASSISTANCE OF COUNSEL ENTITLING HIM TO POST
           CONVICTION RELIEF.

                 (a) Counsel was ineffective for failing
                 to    sufficiently    communicate    with
                 defendant   and   prepare   a   minimally
                 adequate defense for trial.

                 (b) Counsel was ineffective for failing
                 to object to numerous instances of
                 prosecutorial misconduct resulting in an
                 unfair trial.

     Under the Sixth Amendment of the United States Constitution,

a person accused of crimes is guaranteed the effective assistance

of legal counsel in his defense.      Strickland v. Washington, 
466 U.S. 668, 687 (1984).    To establish a deprivation of that right,

a convicted defendant must satisfy the two-part test enunciated

in Strickland by demonstrating: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced

the accused's defense.    Id. at 687; State v. Fritz, 
105 N.J. 42,

52 (1987).

                                  3                          A-2575-15T2
      In reviewing such claims, courts apply a strong presumption

that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment."     Strickland, 
466 U.S.  at 690.   "[C]omplaints merely of

matters of trial strategy will not serve to ground a constitutional

claim of inadequacy[.]"     Fritz, 
105 N.J. at 54 (citation omitted);

see also State v. Echols, 
199 N.J. 344, 357-59 (2009).             "The

quality of counsel's performance cannot be fairly assessed by

focusing on a handful of issues while ignoring the totality of

counsel's performance in the context of the State's evidence of

defendant's guilt."     State v. Castagna, 
187 N.J. 293, 314 (2006)

(citing State v. Marshall, 
123 N.J. 1, 165 (1991), cert. denied,


507 U.S. 929   (1993)).    "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.'"     Id. at 314-15 (quoting State v. Buonadonna, 
122 N.J. 22,

42 (1991)).

      The trial court has the discretion to conduct an evidentiary

hearing.     State v. Preciose, 
129 N.J. 451, 462 (1992); R. 3:22-

10. In order to obtain an evidentiary hearing on a PCR application

based upon an ineffective assistance claim, defendant must make a

prima facie showing of deficient performance and actual prejudice.

                                   4                           A-2575-15T
2 Id. at 462-63.     "When determining the propriety of conducting an

evidentiary hearing, the PCR court should view the facts in the

light most favorable to the defendant."               State v. Jones, 
219 N.J.
 298, 311 (2014) (citation omitted); see also Preciose, 
129 N.J.

at 462-63.

      However,    "bald    assertions"         of   deficient     performance      are

simply insufficient.        State v. Porter, 
216 N.J. 343, 355 (2013)

(citing State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div.),

certif. denied, 
162 N.J. 199 (1999)).                    Rather, defendant must

demonstrate a reasonable likelihood of success on the merits.                       R.

3:22-10(b).

      Defendant   argues        an    evidentiary    hearing      was   required    to

discern whether his trial counsel adequately prepared a trial

strategy.     Defendant asserts his trial counsel only met with him

two times in an eleven-month period, failed to call an expert

witness, and did not confer with him so that he could participate

in trial strategy.

      Defendant    has    not        presented   prima     face   evidence    of    an

ineffective assistance of counsel claim warranting an evidentiary

hearing.     As noted by the PCR court, defendant's trial counsel

developed a trial strategy of self-defense.                Trial counsel secured

two   witnesses   and     had    defendant       testify    in    support   of   this

strategy.    He also attempted to move medical records into evidence

                                           5                                 A-2575-15T2
to support this theory.          While defendant contends an expert would

have altered the outcome of the trial, he fails to sufficiently

explain    how    this   would    occur.     Moreover,    defendant      has   not

identified any other favorable witnesses or evidence that would

have been adduced through additional meetings with his attorney.

Accordingly, these bald assertions fail to persuade us that an

evidentiary hearing was warranted.

     Lastly, defendant avers he was denied effective assistance

of counsel because his trial counsel failed to object to multiple

instances   of    prosecutorial      misconduct     in   opening   and   closing

statements. Defendant has previously raised substantially similar

issues on direct appeal, State v. Jimenez, No. A-4280-09 (App.

Div. Mar. 10, 2014) (slip op. at 22-30), and we ultimately found

defendant was not prejudiced.          Correspondingly, we need not delve

into the merits of these arguments again.                R. 3:22-5; State v.

McQuaid, 
147 N.J. 464, 483 (1997) ("[A] defendant may not use a

petition    for     post-conviction        relief   as   an   opportunity        to

relitigate a claim already decided on the merits.").

     Affirmed.




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