STATE OF NEW JERSEY v. PEDRO SOLER

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO SOLER,

Defendant-Appellant.

_________________________________________

January 23, 2017

Submitted November 9, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0147.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Leonard Victor Jones, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pedro Soler appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted following a jury trial of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) and 2C:14-2(c)(3)(b), and acquitted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). State v. Pedro Soler, No. A-3533-08 (App. Div. Dec. 30, 2011) (slip op. at 1-2).1 After granting the State's motion for an extended term, the judge sentenced defendant to a term of eighteen years in prison, with an eighteen-year period of parole ineligibility. Id. at 2.

On direct appeal, defendant argued, among other things, that the judge improperly denied his motion to proceed pro se at trial. Ibid. We rejected defendant's argument, finding the judge had "scrupulously" followed controlling precedent in denying defendant's request. Id. at 12. The Supreme Court denied defendant's petition for certification. State v. Soler, 210 N.J. 479 (2012).

Defendant filed a pro se PCR petition alleging the ineffective assistance of counsel (IAC). One of the specific claims was that trial counsel had a conflict of interest because at one point during the proceedings, defendant had failed to pay counsel fees. PCR counsel was appointed and filed a brief, attached to which were two emails between trial counsel and defendant's wife. The first, sent before trial, was introductory in nature and indicated counsel's willingness to represent defendant. The second was dated November 17, 2008, which was after the jury returned its verdict but before defendant was sentenced.

Trial counsel was apparently representing defendant in another criminal matter in a different county, had filed a PCR "motion" in that case and a civil complaint on defendant's behalf in another matter. Counsel wrote to defendant's wife that he would not do any further work until "the remaining monies you owe my firm, a total of $25,000," were paid. He added "[w]hile I am ethically obligated to appear at [defendant's] sentencing[,] I will not file a brief in response to the State[']s motion for an extended term, nor will I present any argument in opposition." Counsel further noted defendant was not "mandatory three strikes eligible" because of the "acquittal on the most serious count." Counsel indicated he would withdraw from further representation on the other two matters, and defendant could proceed pro se or his wife could retain other counsel. Lastly, counsel stated the balance needed to be paid by a certain date.2

The record fails to reveal whether defendant and his family paid the balance of the fee, however, trial counsel did appear at sentencing. At the start of the hearing, the judge complimented counsel on his performance during trial, stating "you did an excellent job . . . . I was very impressed by you." Counsel argued on behalf of defendant and called a member of defendant's family to speak on his behalf.

During the PCR hearing that took place before Judge Scott J. Moynihan, who was not the trial judge, PCR counsel argued that, although the fee issue was never brought to the trial judge's attention, it permeated the proceedings. In particular, PCR counsel argued defendant's attempts to represent himself at trial were demonstrable proof of a conflict between defendant and counsel over fees. PCR counsel urged Judge Moynihan to grant an evidentiary hearing.

Judge Moynihan cited extensively to the trial record and the emails. He noted that trial counsel effectively cross-examined the State's witnesses, successfully moved to dismiss one count of the indictment and secured an acquittal for defendant on the most serious count, first-degree aggravated sexual assault.3 Judge Moynihan also determined that to the extent defendant was arguing he should have been permitted to represent himself, the claim was barred by Rule 3:22-5. Judge Moynihan then addressed the remaining claims defendant made in his pro se filing and denied the petition without an evidentiary hearing.

Before us, defendant argues he presented a prima facie case of IAC such that an evidentiary hearing was appropriate. He contends the email to his wife reflects an inherent conflict between trial counsel and his client. Defendant also argues that none of his claims were procedurally-barred. We disagree and affirm.

To establish an IAC claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

Our Rules anticipate the need to hold an evidentiary hearing on IAC claims "only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "[W]e review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Here, defendant failed to present a prima facie case of ineffective assistance by trial counsel. As Judge Moynihan noted, defendant asserted no specific claim of deficient performance and trial counsel achieved an exemplary result. The email regarding the fee dispute was dated after the trial ended but before defendant was sentenced. Whatever the email implied regarding the sentencing proceedings, the record is clear. Trial counsel appeared and adequately represented defendant. In fact, defendant has asserted no deficiency regarding counsel's performance at sentencing.

Additionally, "[a] petitioner is generally barred from presenting a claim on PCR . . . that has been previously litigated, R. 3:22-5." State v. Nash, 212 N.J. 518, 546 (2013). We agree with Judge Moynihan that, to the extent defendant again asserts he should have been permitted to represent himself at trial, the claim is procedurally-barred by Rule 3:22-5.

Affirmed.

1 Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).

2 We cannot tell what date because the exhibit in the appendix is cropped and the date is not included.

3 The significance of this acquittal is obvious. Defendant was eligible for an extended term both as a "persistent offender," N.J.S.A. 2C:44-3(a), and as having committed the offense "while serving a special sentence of parole supervision for life." N.J.S.A. 2C:43-6.4(e); Soler, supra, at 17. As a result, had defendant been convicted of the first-degree crime, he faced an extended term of imprisonment between twenty years and life. N.J.S.A. 2C:43-7(a)(2).