STATE OF NEW JERSEY v. CARLOS ROJAS

NOT FOR PUBLICATION WITHOUT THE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-4487-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS ROJAS, a/k/a
CARLOS BENITEZ, and
CARLOS ROJAS-BENITEZ,

     Defendant-Appellant.
__________________________

                   Submitted November 16, 2020 – Decided December 4, 2020

                   Before Judges Fasciale and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 12-09-1046.

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

                   Robert J. Carroll, Acting Morris County Prosecutor,
                   attorney for respondent (John McNamara, Jr., Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   on the brief).
PER CURIAM

      Defendant appeals from an April 8, 2019 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. 1         Defendant

maintains he was entitled to an evidentiary hearing as to his mother's allegations

of dissatisfaction with his trial counsel. Judge Michael E. Hubner entered the

order and rendered a comprehensive written opinion.

      On appeal, defendant argues:

            POINT I

            THE TRIAL [JUDGE] ABUSED [HIS] DISCRETION
            IN DENYING [DEFENDANT'S] PETITION FOR
            [PCR] AS [DEFENDANT] MADE A SUFFICIENT
            PRIMA    FACIE   CASE   OF    INEFFECTIVE
            ASSISTANCE OF COUNSEL TO WARRANT AN
            EVIDENTIARY HEARING.




1
   A jury found defendant guilty of first-degree aggravated manslaughter,
 N.J.S.A. 2C:11-4(a); first-degree kidnapping, N.J.S.A. 2C:13(1)(b)(1)-(2);
second-degree desecrating human remains,  N.J.S.A. 2C:22-1(a)(1); third-degree
possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(d); fourth-
degree unlawful possession of a weapon,  N.J.S.A 2C:39-5(d); third-degree theft
from a person,  N.J.S.A. 2C:20-3(a); fourth-degree theft by unlawful taking,
 N.J.S.A. 2C:20-3(a); and third-degree hindering one's own apprehension,
 N.J.S.A. 2C:29-3(b)(4). We affirmed the convictions and sentence. State v.
Rojas, No. A-4358-14 (App. Div. Nov. 20, 2017).


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We are satisfied from our review of the record that defendant failed to establish

a prima facie claim of ineffective assistance of counsel. We see no abuse of

discretion and affirm substantially for the reasons set forth in Judge Hubner's

written opinion. We add the following remarks.

                                        I.

      A hearing on a PCR petition is only required when a defendant establishes

"a prima facie case in support of [PCR]," the judge determines that there are

disputed issues of material fact "that cannot be resolved by reference to the

existing record," and the judge finds that "an evidentiary hearing is necessary to

resolve the claims for relief." R. 3:22-10(b); see also State v. Porter,  216 N.J.
 343, 355 (2013). In contrast, a defendant is not entitled to an evidentiary hearing

if the "allegations are too vague, conclusory, or speculative[.]"         State v.

Marshall,  148 N.J. 89, 158 (1997); see also Porter,  216 N.J. at 355. Rather, a

defendant must allege specific facts and evidence supporting his allegations.

State v. Cummings,  321 N.J. Super. 158, 170 (1999) (explaining that "in order

to establish a prima facie claim, a [defendant] must do more than make bald

assertions that he was denied the effective assistance of counsel").

      When determining whether to grant an evidentiary hearing, the PCR

[judge] must consider the facts in the light most favorable to the defendant to


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determine whether defendant has established a prima facie claim.          State v.

Preciose,  129 N.J. 451, 462-63 (1992). We review a court's decision to deny a

PCR petition without an evidentiary hearing for abuse of discretion. Id. at 462.

Applying these principles, and considering the insufficient evidentiary value of

defendant's mother's certification, we see no abuse of discretion and conclude

there is no basis for an evidentiary hearing.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must meet the two-prong test established in Strickland v. Washington,

 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz,

 105 N.J. 42, 58 (1987). The first prong of Strickland/Fritz requires the defendant

to show that his or her [counsel]'s performance was deficient. Strickland,  466 U.S.  at 687. To do so, a defendant must establish that counsel's alleged acts or

omissions "were outside the wide range of professionally competent assistance."

Id. at 690. This requires a showing "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the
 Sixth Amendment." Id. at 687.

      The second prong of Strickland/Fritz requires the defendant to "show that

the deficient performance prejudiced the defense." Ibid. The defendant must

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


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the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome." Id. at 694.

"[I]f counsel's performance has been so deficient as to create a reasonable

probability that these deficiencies materially contributed to defendant's

conviction, the constitutional right will have been violated." Fritz,  105 N.J. at
 58.

      We agree that defendant failed to establish a prima facie claim. As to the

first prong of Strickland/Fritz, defendant failed to show that private counsel was

deficient.   Although counsel's tactical options were limited given the

overwhelming proofs confronting defendant, he nevertheless put forth a sound

theory that defendant's co-conspirator committed the murder and, in response to

the State's theory that the attacker was right-handed, argued that the left-

handedness of defendant raised reasonable doubt. State v. Arthur,  184 N.J. 307,

318-19 (2005) (explaining that "[b]ecause of the inherent difficulties in

evaluating a defense counsel's tactical decisions . . . during trial, 'a court must

indulge a strong presumption that counsel's conduct falls within the wide range

of reasonable professional assistance'") (quoting Strickland,  466 U.S. at 689).

As to the second prong of Strickland/Fritz, defendant failed to demonstrate

prejudice where counsel successfully convinced the jury to acquit defendant on


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the most serious charges of murder and felony murder. We note that the PCR

judge properly rejected defendant's bald assertions that counsel rendered

ineffective assistance by coercing his trial testimony, not taking enough time to

meet with him review surveillance video evidence, failing to obtain a blood stain

expert, and being hard of hearing. See Cummings,  321 N.J. Super. at 170.

         Defendant's mother submitted her certification containing expressions of

dissatisfaction with counsel—which defendant mischaracterizes as claims of

ineffective assistance—on the eve of the PCR hearing. At the hearing, the judge

gave PCR counsel an opportunity to address the relevance of the certification,

but counsel declined to do so. He subsequently accepted the certification as a

confidential exhibit but did not address it in his written opinion. We see no

error.

         We reject defendant's contention that the certification alleged with

specificity that counsel provided ineffective assistance. In her certification,

defendant's mother vaguely expressed her dissatisfaction with the progress of

the case as well as issues regarding compensation. She articulated the following

issues related to her son's representation: counsel expressed that he "could have

done more for [defendant];" counsel misrepresented his fee for defendant's

appeal; counsel took a year to send a letter of representation to Morris County;


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counsel failed to bring documents to court; counsel was hungover; counsel made

very few visits to defendant because "he had meetings with the Prosecutor or he

did not have time;" counsel was more dedicated to his other clients than to

defendant; counsel cancelled appointments with her; counsel failed to deliver

the notice of appeal on his own; and counsel "failed to present photos, videos

and important witnesses to the case."

      Defendant does not point to any fact alleged by his mother in her

certification that is material to the objective determination that defendant

presented a prima facie claim of ineffective assistance of counsel. Statements

of dissatisfaction by defendant—or in this case defendant's relative—have no

bearing on the constitutional analysis required for an ineffective assistance

claim.   See State v. Castagna,  187 N.J. 293, 314 (2006) (noting that an

"otherwise valid conviction will not be overturned merely because the defendant

is dissatisfied with his or her counsel's exercise of judgment during the trial").

We therefore reject defendant's argument that the certification warranted a

hearing because the complaints of substandard performance of counsel were

largely within the purview of defendant's mother, rather than defendant. Even

if they were within defendant's purview—which is not the case—defendant

cannot rely on a relative to substantiate his claim. See State v. Gaitan, 209 N.J.


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339, 350 (2012) (explaining that defendant "bears the burden of proving his or

her right to relief by a preponderance of the evidence"). Defendant's mother's

dissatisfaction with counsel is insufficient to warrant an evidentiary hearing.

      Even assuming defendant's mother's dissatisfaction was sufficient—

which again is not the case—there is insufficient evidentiary value to the

information contained in the certification. See R. 3:22-10(b). The certification

provides no specific details pertinent to defendant's claim of being pressured

into testifying or that would require a hearing be conducted to resolve a factual

dispute regarding counsel's physical condition. 2      To the extent defendant's

mother makes allegations not known to the judge regarding counsel's failure to

investigate suggested witnesses or present evidence at trial, those allegations are

too vague and conclusory to warrant a hearing. See Marshall,  148 N.J. at 158;

see also Cummings,  321 N.J. Super. at 170.

      To the extent we have not addressed them, any additional arguments

raised by defendant lack sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

      Affirmed.


2
   Defendant does not address the claim raised below that trial counsel was
ineffective for failing to call a blood stain expert. Thus, this claim is waived.
See Gormley v. Wood-El,  218 N.J. 72, 95 n.8 (2014).
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