STATE OF NEW JERSEY v. IGNACIO VASQUEZ

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                                NOT FOR PUBLICATION WITHOUT THE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-4460-19

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

IGNACIO VASQUEZ,
a/k/a IGNACIO ORTIZ
VASQUEZ,

     Defendant-Appellant.
_______________________

                    Submitted November 18, 2021 – Decided March 18, 2022

                    Before Judges Haas and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 15-12-0773.

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

                    William A. Daniel, Union County Prosecutor, attorney
                    for respondent (Albert Cernadas, Jr., Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Ignacio Vasquez appeals from an April 23, 2020 order denying

his post-conviction relief (PCR) petition without a hearing. We affirm, albeit

on slightly different grounds than the PCR judge.

      We discern the following facts from the record. In 2015, defendant lived

with his girlfriend, Yuri Cruz, and their eight-year-old son, K.O., in a bedroom

on the second floor of a rooming house in Rahway, New Jersey. On September

12, 2015, the Rahway Police Department responded to a 911 call regarding a

suspicious death and discovered Cruz's body in her bed with obvious ligature

marks around her neck and ruptured blood vessels in her eyes.

      Defendant waived his Miranda rights and confessed in a videotaped

statement to police. A Miranda hearing was held on April 24, 2018 to consider

the admissibility of defendant’s videotaped statements.       As the video was

played, defendant became "visibly emotional" and, after consulting with

counsel, entered an "open" guilty plea to first-degree murder,  N.J.S.A. 2C:11-

3(a)(1) and/or (a)(2) (count one); and second-degree endangering the welfare of

a child,  N.J.S.A. 2C:24-4(a)(2) (count two).        In his allocution, defendant

admitted to strangling Yuri and leaving K.O. alone with his dead mother’s body

for some time.




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      At the June 8, 2018 sentencing hearing, defendant's attorney stated he

would not "go through the aggravating and mitigating factors" because he knew

the State would. Defense counsel argued, however, that he "never represented

a . . . man in this situation, who was more melancholy, sad, disconsolate, . . .

[or] morose[.]" Trial counsel stated defendant was "depressed . . . over what

had happened[,]" and "had no excuse for his behavior." Counsel noted defendant

cooperated with the detectives, and at the Miranda hearing he "wanted to admit

what he had done and recognize that it was something that he could never take

back and never make better, but to accept punishment." Defendant's attorney

also noted defendant had "no prior criminal record."

      The sentencing judge found aggravating factors one (nature and

circumstances of the offense), two (gravity and seriousness of harm inflicted on

the victim), and nine (need for deterring defendant and others) as well as

mitigating factor seven (no history of prior delinquency). On count one, the

judge imposed a sentence of forty years, subject to the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2. On count two, she sentenced defendant to a seven-

year term, to run consecutively to the sentence on count one.

      Defendant appealed his sentence to our excessive sentence calendar to

request a reduction of the imprisonment term on count one from forty to thirty


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years. At the hearing, appellate counsel stated "[a]nd we understand that the

[c]ourt properly addressed the Yarbough1 factors and that consecutive sentences

in this case would be appropriate." Defendant argued the sentencing judge

should have considered mitigating factor eight (circumstances highly unlikely

to occur) and nine (his character and attitude). By order dated December 3,

2018, we affirmed defendant's sentence, finding it was "not manifestly excessive

or unduly punitive and [did] not constitute an abuse of discretion." See State v.

Cassady,  198 N.J. 165 (2009); State v. Roth,  95 N.J. 334 (1984). The Supreme

Court denied certification. State v. Vasquez,  236 N.J. 613 (2019).

       On September 5, 2019, defendant filed this PCR petition, alleging

ineffective assistance of counsel. On April 17, 2020, the PCR judge denied

defendant's petition without an evidentiary hearing for failure to establish a

prima facie case of ineffective assistance of counsel. This appeal followed.

       Defendant raises the following points on appeal:

             POINT I

             DEFENDANT      RECEIVED      INEFFECTIVE
             ASSISTANCE OF TRIAL COUNSEL FOR FAILING
             TO ARGUE MITIGATING FACTORS AT THE TIME
             OF SENTENCE, FOR FAILING TO ADEQUATELY
             INVESTIGATE    A   PASSION/PROVOCATION

1
    State v. Yarbough,  100 N.J. 627, 643-44 (1985).


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            DEFENSE, AND FOR FAILING TO CHALLENGE
            THE    IMPOSITION   OF    CONSECUTIVE
            SENTENCES.

                   A. APPLICABLE LAW.

                   B. DEFENDANT RECEIVED INEFFECTIVE
                   ASSISTANCE WHEN COUNSEL FAILED TO
                   ARGUE   MITIGATING  FACTORS    AT
                   SENTENCING.

                   C. DEFENDANT RECEIVED INEFFECTIVE
                   ASSISTANCE FOR COUNSEL'S FAILURE TO
                   CONDUCT A MINIMALLY ADEQUATE
                   INVESTIGATION INTO A CLAIM OF
                   PASSION/PROVOCATION.

                   D. DEFENDANT RECEIVED INEFFECTIVE
                   ASSISTANCE FOR COUNSEL'S FAILURE TO
                   ARGUE   THE    MISAPPLICATION    OF
                   CONSECUTIVE SENTENCES.

      "[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). "If the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." Ibid. (alteration in original) (quoting State v. Marshall,  148 N.J. 89,

158 (1997)). We review the denial of a PCR petition with "deference to the trial

court's factual findings . . . 'when supported by adequate, substantial and credible


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evidence.'" State v. Harris,  181 N.J. 391, 415 (2004) (alteration in original)

(quoting Toll Bros. v. Twp. of W. Windsor,  173 N.J. 502, 549 (2002)). Where,

as here, "no evidentiary hearing has been held, we 'may exercise de novo review

over the factual inferences drawn from the documentary record by the [PCR

judge].'"   State v. Reevey,  417 N.J. Super. 134, 146-47 (App. Div. 2010)

(alteration in original) (quoting Harris,  181 N.J. at 421). We also review de

novo the legal conclusions of the PCR judge. Harris,  181 N.J. at 415-16 (citing

Toll Bros.,  173 N.J. at 549).

      A defendant seeking PCR must establish "by a preponderance of the

credible evidence" that he is entitled to the requested relief. State v. Nash,  212 N.J. 518, 541 (2013) (quoting State v. Preciose,  129 N.J. 451, 459 (1992)). The

defendant must allege and articulate specific facts that "provide the court with

an adequate basis on which to rest its decision." State v. Mitchell,  126 N.J. 565,

579 (1992).

      Ineffective assistance of counsel claims must satisfy the two-prong test

set forth in Strickland v. Washington, which was also adopted by the New Jersey

Supreme Court in State v. Fritz.  466 U.S. 668, 687 (1984);  105 N.J. 42, 58

(1987).     Under the first prong, a "defendant must show that counsel's

performance was deficient" and that counsel's errors were so egregious that he


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"was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."      Strickland,  466 U.S.  at 687.      The second prong requires a

defendant to demonstrate that the alleged defects prejudiced his right to a fair

trial to the extent "that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland,  466 U.S.  at 694; Fritz,  105 N.J. at 60-61 (internal quotation marks

omitted).

      In light of these guiding principles, we reject defendant's argument that

trial counsel failed to investigate a possible defense of passion/provocation as

his claim is belied by the transcript of his April 24, 2018 plea hearing:

            THE COURT: Mr. Russo said that you had some
            discussions about possible defenses. Correct?

            [DEFENDANT]: Yes.

            THE COURT: In fact, you had a discussion about a
            possible defense of passion provocation. Is that right?

            [DEFENDANT]: Yes.

            THE COURT: And you're aware that Mr. Russo filed a
            notice to the [c]ourt that he intended asking for a
            passion/provocation charge at the time the jury was to
            consider the case. You're aware of that as well?

            [DEFENDANT]: Yes.



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            THE COURT: You understand by pleading guilty
            today you're giving up any sort of defenses to be put
            before this jury, including asking for a lesser included
            [charge] of passion/provocation manslaughter? Do you
            understand that?

            [DEFENDANT]: Yes.

            THE COURT: I'm – I'm just letting you know that I –
            I don't know whether or not I would let the jury have
            that charge, but I'm just telling you that there's possible
            defenses that you could put forward. You're giving up
            that right by pleading guilty. Do you understand that?

            [DEFENDANT]: Yes.

            THE COURT: Are you satisfied with the advice that
            you've received from Mr. Russo in this matter?

            [DEFENDANT]: Yes.

As the PCR judge found, defendant's argument has no merit and requires no

further discussion.

      We also reject defendant's assertions with respect to sentencing. When

the allegations underpinning an ineffective assistance of counsel claim has

already been raised on direct appeal, "it may be procedurally barred on PCR by

Rule 3:22-5." State v. McQuaid,  147 N.J. 464, 484 (1997).

      Rule 3:22-5 provides:

            A prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction

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            proceeding brought pursuant to this rule or prior to the
            adoption thereof, or in any appeal taken from such
            proceedings.

      "'Preclusion of consideration of an argument presented in post-conviction

relief proceedings should be affected only if the issue [raised] is identical or

substantially equivalent' to that issue previously adjudicated on its merits."

McQuaid,  147 N.J. at 484 (quoting State v. Bontempo,  170 N.J. Super. 220, 234

(Law Div. 1979)). The court will not accept a defendant's contention that he

was unable to raise the issue of ineffective assistance of counsel in cases where

the issue "could have been raised and would be procedurally barred but for the

constitutional attiring of the petition in ineffective assistance of counsel

clothing." State v. Moore,  273 N.J. Super. 118, 125 (1994).

      Defendant's arguments that counsel was ineffective for failing to address

mitigating factors eight (circumstances highly unlikely to occur), nine (his

character and attitude), and twelve (his willingness to cooperate with law

enforcement) and for failing to challenge the court's imposition of consecutive

sentences raised on PCR are identical to the issues raised and adjudicated in his

sentencing appeal. Thus, Rule 3:22-5 bars relief because these issues were

previously adjudicated. See State v. Sloan,  226 N.J. Super. 605, 611-12 (App.

Div. 1988) (finding that defendant's claim of ineffective assistance of counsel


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was barred because it had been raised and rejected on direct appeal). Defendant

cannot overcome the procedural bar by attiring the same arguments as an

ineffective-assistance claim. See Moore,  273 N.J. Super. at 125.

      To the extent we have not addressed defendant's arguments, we find they

lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-

3(e)(2).

      Affirmed.




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