STATE OF NEW JERSEY v. ISMAEL G. QUINONES

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-3322-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ISMAEL G. QUINONES,
a/k/a ISMAEL GONZALEZ,
and ISHMAEL QUINONES,

     Defendant-Appellant.
________________________

                   Submitted December 1, 2020 – Decided February 16, 2021

                   Before Judges Fisher and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 13-07-1924.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anthony J. Vecchio, Designated Counsel, on
                   the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel Marzarella, Chief
                   Appellate Attorney, of counsel; Cheryl L. Hammel,
                   Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant appeals the denial of his petition for post-conviction relief

(PCR), in which he asserted an ineffective-assistance-of-counsel claim. Judge

Guy P. Ryan rejected defendant's claim that his counsel was ineffective and that

his ineffectiveness caused defendant to agree to a plea bargain he would not

otherwise have accepted.        We substantially agree with Judge Ryan's

comprehensive analysis and affirm.

      To obtain relief on ineffective-assistance-of-counsel grounds, a defendant

must show that counsel's performance was deficient and the deficiency

prejudiced the defendant. Strickland v. Washington,  466 U.S. 668, 687 (1984);

State v. Fritz,  105 N.J. 42, 58 (1987). To satisfy those two prongs, a defendant

"must prove an objectively deficient performance by defense counsel" and that

the deficiency was so prejudicial that "it is reasonably probable that the result

would be altered." State v. Allegro,  193 N.J. 352, 366 (2008).

      A defendant's right to effective assistance of counsel extends to the

decision to enter a guilty plea. State v. Gaitan,  209 N.J. 339, 350-51 (2012). To

meet the Strickland prejudice prong in a claim based on a guilty plea, a

defendant must demonstrate "a reasonable probability that, but for counsel's

errors, [the defendant] would not have pleaded guilty and would have insisted


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on going to trial." Hill v. Lockhart,  474 U.S. 52, 59 (1985); see also State v.

Aburoumi,  464 N.J. Super. 326, 339 (App. Div. 2020). A defendant also "must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky,  559 U.S. 356, 372

(2010); see also Aburoumi,  464 N.J. Super. at 339.

      We defer to a "trial court's factual findings made after an evidentiary

hearing on a petition for PCR," State v. Blake,  444 N.J. Super. 285, 294 (App.

Div. 2016), when they are supported by substantial credible evidence, State v.

Harris,  181 N.J. 391, 415 (2004). We also defer to a trial judge's credibility

determinations. Reese v. Weis,  430 N.J. Super. 552, 567 (App. Div. 2013). We

"review de novo the court's conclusions of law." Blake,  444 N.J. Super. at 294.

      In an interview with detectives,1 defendant conceded that he had sexual

relations with the victim but contended that it was a consensual part of a drugs-

for-sex deal he had made with the victim's boyfriend. He acknowledged that he

had not met or spoken with the victim before he entered her hotel room.

According to the victim, she had fallen asleep in their hotel room before her

boyfriend left to get them food and she woke up to defendant performing a sex


1
  The trial judge granted defendant's motion to suppress defendant's statements
to detectives but later held that the statements could be used at trial to impeach
defendant if he testified.
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act on her. When she realized what was happening, she left the room and went

to the office of the hotel manager. The manager described her as being wrapped

in a blanket, "hysterically crying and screaming" and "yelling" that she had been

raped.

      Defendant was charged with two counts of first-degree aggravated sexual

assault,  N.J.S.A. 2C:14-2(a)(7) and 2C:14-2(a)(3), and one count of second-

degree burglary,  N.J.S.A. 2C:18-2. Defendant does not dispute Judge Ryan's

finding that he faced a possible term of fifty-years imprisonment with a forty-

two-year period of parole ineligibility and the likelihood that he would have

served that sentence consecutive to other sentences for other pending charges.

      Pursuant to a negotiated plea agreement, defendant pleaded guilty to one

count of second-degree sexual assault,  N.J.S.A. 2C:14-2(c)(1), and was

sentenced to seven-years imprisonment, subject to an eighty-five percent period

of parole ineligibility, which was less than the ten-year sentence recommended

by the State and was to run concurrent to a sentence he then was serving on

another conviction. He was also sentenced to parole supervision for life. During

the plea hearing defendant admitted under oath that he had removed the victim's

pants and sexually penetrated her vaginally without her consent.




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      Defendant did not file a direct appeal but instead filed a PCR petition. In

that petition defendant asserted that his trial counsel was ineffective because he

(i) failed to contact the doctor and nurse who had treated the victim and,

according to defendant, would have established that the victim was not

intoxicated at the time of the assault 2; (ii) failed to inform defendant that he

could have called the treating doctor and nurse and the hotel manager 3 to testify

as to the victim's intoxication level; and (iii) failed to retain a

psychopharmacology expert who "would have testified that the victim was not

intoxicated to the level which would render her incapable of consenting to

engaging in sexual relations." Defendant asserted that if, instead of telling him

that he had "no defense," his counsel had told him that he could call those

witnesses to testify about the victim's lack of intoxication, he would not have

pleaded guilty and would have taken the case to trial.

      After the initial oral argument on defendant's petition, Judge Ryan held an

evidentiary hearing at which defendant, his trial counsel, and an emergency-


2
  According to a blood sample taken at the hospital hours after the assault, the
victim had a blood alcohol level of .093. The nurse had conducted a Glasgow
Coma Scale test on the victim, found her to be "oriented," and did not note that
she was intoxicated.
3
  The manager told the detective that when the victim and her boyfriend checked
into the hotel, the victim was not "intoxicated" but "a little buzzed."
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room nurse who had treated the victim testified. The judge found the testimony

of counsel and the nurse to be credible and defendant's testimony to lack

credibility. He concluded defendant had failed to establish that his counsel's

performance was deficient or that a decision to reject the plea bargain would

have been made or would have been rational. Those conclusions were supported

by substantial credible evidence in the record.

      Defendant's PCR argument is premised entirely on the victim's purported

lack of intoxication. As Judge Ryan found, "focusing a defense on the alleged

lack of intoxication would have been a precarious strategy" and "[b]eing

cautious about asserting such a defense was sound advice from defense counsel."

That defense posed a significant risk of leading to the admission of evidence

that supported the State's case. Defendant would have had to testify to prove

his contention that the victim had consented. In testifying, defendant risked

exposing the jury to his numerous prior felony convictions, his statements to the

detectives, and his admission that he was dealing drugs that night.

      Although the manager might have testified that the victim was only "a

little buzzed," he also would have told the jury the victim had come into his

office, "hysterically crying and screaming," wrapped only in a blanket, and

"yelling" she had been raped. Judge Ryan correctly concluded that it would


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have been "foolhardy" to call the manager as a witness because any benefit in

calling him to testify about the victim's intoxication level was "far outweighed

by the otherwise damaging effect his testimony would have had."

      Assuming the testimony of a treating or expert witness would support

defendant's lack-of-intoxication defense, the State could have rebutted that

testimony by retaining an expert who would have found that the victim's blood

alcohol level was higher at the time of the assault – likely over .1 as trial counsel

credibly testified – than it was hours later when her blood was drawn at the

hospital. In addition, the treating doctor or nurse could have testified that the

victim appeared to be upset and was crying and that they found a tampon up

towards her cervix, "impacted," a condition which, as trial counsel testified, is

generally not consistent with consensual sex.

      More important, in basing his argument entirely on a lack-of-intoxication

defense, defendant ignores the State's primary argument: the victim was unable

to consent because she was asleep. See, e.g., State in Interest of M.T.S.,  129 N.J. 422, 444 (1992) (reinstating sexual-assault conviction involving victim who

was asleep at the time of the assault); State v. Rush,  278 N.J. Super. 44, 47-49

(App. Div. 1994) (affirming criminal sexual-contact conviction, court found

sleeping victim meets physically-helpless standard);  N.J.S.A. 2C:14-2(a)(7)


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("[t]he victim, at the time of sexual penetration, is one whom the actor knew or

should have known was: (a) physically helpless . . . "). As trial counsel credibly

testified, "[b]ased upon the statute, the intoxication wasn't a significant issue."

      On appeal, defendant asserts that counsel's performance was deficient also

because he failed to review the entire discovery with defendant. Comparing trial

counsel's "credible and compelling" testimony to defendant's "bald assertions,"

which were "contradicted by his own words during the evidentiary hearing" –

including his admission that before he pleaded guilty, his counsel had reviewed

with him the victim's blood alcohol reading and other hospital records regarding

the victim, Judge Ryan rejected defendant's contention that trial counsel had

failed to review records with him. We see no abuse of discretion in that

credibility determination.

      Defendant incorrectly contends that Judge Ryan's "belief that defendant's

chances at trial would have been poor is of no moment." To the contrary, that

assessment, based on the credible evidence in the record, is directly relevant to

what a judge ultimately must decide in an ineffective-assistance claim based on

a guilty plea. A lawyer who recommends proceeding to trial based on a defense

that will lead to the introduction of evidence supporting the State's case more

than his client's case is not effective; rejecting a plea deal and going to trial


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based on a defense with little, if any, likelihood of success is not rational,

especially when the potential risk is an additional three decades in prison.

      Rather than ineffective, Judge Ryan found that trial counsel was "diligent,

thorough, effective and successful in negotiating a favorable plea agreement and

excellent sentencing result" for defendant.      Finding the evidence against

defendant to be "overwhelming" and the plea agreement to be "very favorable,"

Judge Ryan held that defendant had submitted "no credible evidence" supporting

his contention that he would have rejected the plea deal and instead would have

insisted on going to trial, or that a rejection of the plea deal would have been

"rational under the circumstances." Padilla,  559 U.S.  at 372. Those conclusions

were well supported by substantial credible evidence in the record.

      Affirmed.




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