STATE OF NEW JERSEY v. JORGE RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5611-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JORGE RODRIGUEZ, a/k/a
JORGE RODRIGUES,

     Defendant-Appellant.
_____________________________

                    Submitted October 16, 2018 – Decided October 23, 2018

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 11-01-0003.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sarah E. Elsasser, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Jorge Rodriguez appeals from the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

      Along with co-defendants Jhon Yebes and Pedro Dominguez, defendant

was charged with two counts of armed robbery, possession of a knife for an

unlawful purpose, and unlawful possession of a knife. The charges stemmed

from an August 21, 2010 knifepoint robbery in Elizabeth.

      The victims of the robbery gave descriptions to the police of their

assailants shortly after the incident.     Based on the descriptions, police

apprehended defendant, Yebes, and Dominguez in the area near the robbery, and

the victims identified them on-site as three of their four attackers. At the time

of their arrest, the three men were each carrying items that belonged to the

victims.

      Defendant, Yebes, and Dominguez were tried together, and were found

guilty of all charges. The trial court sentenced defendant to two consecutive

fifteen-year terms with eighty-five percent parole disqualification for the two

armed robbery counts. The remaining counts merged.

      We affirmed defendant's conviction on direct appeal but remanded for

resentencing.   After the Supreme Court denied certification, the trial court

resentenced defendant to a fifteen-year sentence for one robbery and a


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consecutive term of eleven years for the other, both with eighty-five percent

parole disqualification.

      After we affirmed defendant's sentence, defendant filed for PCR. In his

petition, defendant alleged his trial counsel provided ineffective assistance by

failing to 1) file a motion for severance; 2) object to statements by the

prosecutor; 3) object to a lack of written jury instructions on identification; 4)

argue mitigating factors at sentencing; and 5) discuss plea offers with him.

      The PCR judge denied defendant's petition. The judge found defendant's

claims that counsel was ineffective for failing to object to the prosecutor's

comments and to the lack of written instructions on identification were barred

by Rule 3:22-5 and that defendant's claim that counsel failed to argue mitigating

factors was barred by Rule 3:22-4.

      The PCR judge concluded that defendant failed to establish a prima facie

case of ineffective assistance of counsel as to his remaining arguments. He

found that his defense did not conflict with his co-defendants'. The judge also

found defendant's claim that counsel never discussed plea offers with him w as

contradicted by the record.




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      On appeal, defendant argues the PCR judge erred by not holding an

evidentiary hearing on his claim that counsel was ineffective by failing to move

for severance. Defendant's brief includes one point of argument:

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY      HEARING       BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
            FOR FAILING TO MOVE FOR A SEVERANCE
            FROM HIS CO-DEFENDANTS.

      Based on our review of the record and the applicable law, we conclude

this argument lacks sufficient merit to warrant extended discussion. R. 2:11-

3(e)(2). We affirm substantially for the reasons set forth by Judge John M.

Deitch in his cogent written opinion. We add the following comments.

      An evidentiary hearing is required in a PCR matter only once a defendant

establishes a prima facie case of ineffective assistance of counsel. State v.

Preciose,  129 N.J. 451, 462-63 (1992).       "To establish a prima facie case,

defendant must 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." R. 3:22-10(b).

      To have succeeded on his claim of ineffective assistance of counsel,

defendant needed to show that counsel's performance was deficient and that

there was a "reasonable probability that, but for counsel's unprofessional errors,

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the result of the proceeding would have been different." Strickland v.

Washington,  466 U.S. 668, 694 (1984).

      In general, "complaints 'merely of matters of trial strategy' will not serve

to ground a constitutional claim of inadequacy of representation by counsel."

State v. Fritz,  105 N.J. 42, 54 (1987) (quoting State v. Williams,  39 N.J. 471,

489 (1963)). Defense counsel's failure to file a motion that lacks merit cannot

support a finding of ineffective assistance. State v. Fisher,  156 N.J. 494, 501

(1998).   Here, a motion to sever would likely have been denied because

defendant was charged with crimes arising from "the same series of acts" as his

co-defendants, and "much of the same evidence [was] needed to prosecute each."

State v. Brown,  118 N.J. 595, 605 (1990). There is also no evidence in the

record that the joint trial prejudiced defendant because his defense was not

mutually exclusive from his co-defendants'. Id. at 606. Because defendant

failed to establish a prima facie case of ineffective assistance of counsel, an

evidentiary hearing was not required.

      Affirmed.




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