Opinion
DOCKET NO. A-1966-14T2
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SILAS QUIXAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-11-2010. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Silas Quixal appeals from an August 29, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In 2007, a jury convicted defendant of first-degree aggravated sexual assault on a six-year old child, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault upon a victim less than thirteen years of age, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The sentence on the second-degree conviction was run consecutive to the first-degree conviction and defendant was sentenced to an aggregate term of twenty-eight years in prison subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed the convictions, but remanded for resentencing to allow the judge to explain why he imposed consecutive sentences. State v. Quixal, No. A-5879-07 (App. Div. April 19, 2010), certif. denied, 203 N.J. 94 (2010). On remand, defendant was resentenced to the same twenty-eight year prison term.
In December 2010, defendant filed his first PCR petition. The judge's law clerk wrote to defendant advising him of his right to have appointed counsel and further advising him that he could elect to represent himself. Defendant responded in writing by stating that he would represent himself. The trial court then denied the PCR petition on the papers. In March 2012, defendant filed a second PCR petition contending that he had not effectively waived his right to counsel on the first petition. The trial court denied the petition, but on appeal we reversed, holding that defendant had not effectively waived his right to counsel on the PCR petition, and remanding the matter to be treated as a first petition. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013).
After defendant was assigned counsel, Judge Edward A. Jerejian heard oral argument and denied the PCR petition without an evidentiary hearing. Judge Jerejian found that the arguments defendant were raising in his petition did not establish a prima facie case of ineffective assistance of counsel. Judge Jerejian also found that there was no need for an evidentiary hearing.
The testimony at trial established that defendant worked at a garden center. The six-year-old victim had come to the center with her mother. When the child was separated from her mother, she encountered defendant and asked for help to find her mother. Defendant took the child to a secluded area of the garden center, kissed her on the lips, pulled her pants and underwear down and licked her on her vagina. The child also reported that defendant had taken out his penis and asked her to touch it, but she refused.
The facts are described in more detail in our 2010 and 2013 opinions.
Shortly after the incident, the child gave a recorded statement that was played at trial, and the child also testified at trial. The State introduced DNA evidence taken from the inside of the child's underwear. The DNA analysis showed that cells from a male's saliva were found on the inside of the child's underwear and defendant's DNA matched the DNA found on the underwear.
Defendant also gave a statement to the police during which he admitted to kissing the victim "on the vagina," which he also described as "[o]n top of the vagina." Defendant's statement was admitted at trial. At trial defendant testified that when he encountered the child, she asked him to help her find her mother. When he said he would help, the child kissed him and he kissed her on her stomach. Defendant denied sexually assaulting the child, and testified that he told the police what they wanted to hear because he was afraid.
On this PCR appeal, defendant makes the following arguments:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Have Elfido Quixal Testify.
B. Trial Counsel Failed To Prepare Defendant to Testify.
C. Trial Counsel Failed To Argue In Summation That Based Upon Defendant's Videotaped Statement, He Was Not Guilty Of Aggravated Sexual Assault Because He Had Kissed S.B. "Above" And Not "On" The Vagina.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Nuñez-Valdéz, 200 N.J. 129, 138 (2009). Second, "a defendant must show [there exists] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013).
An evidentiary hearing is necessary only after a defendant meets two conditions. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). First, a defendant must establish "a prima facie case in support of [PCR]." R. 3:22-10(b). Second, a defendant must show "there are material issues of disputed fact that cannot be resolved by reference to the existing record." Ibid.
Defendant contends that his counsel was ineffective for failing to (1) call his brother to testify at the Miranda hearing and at trial because his brother would have lent support to defendant's argument that he was intimidated into giving the statement to the police; (2) prepare defendant to testify at trial; and (3) argue in summation that defendant was not guilty of aggravated sexual assault because he kissed the child above, but not on, her vagina.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
In denying defendant's PCR petition, Judge Jerejian considered each of these arguments, but found that they did not establish a prima facie case of ineffective assistance of counsel. Judge Jerejian supported his findings in a thorough and well-written twelve-page opinion. We agree with the analysis of Judge Jerejian and affirm substantially for the reasons explained by Judge Jerejian in his written opinion. Defendant's arguments concerning ineffective assistance of trial counsel all relate to trial strategy and defendant made no showing that trial counsel was ineffective. See State v. Parker, 212 N.J. 269, 279 (2012) (explaining that counsel's alleged deficiency must be "serious" and that a defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance") (quoting and citing Strickland, supra, 466 U.S. at 687, 689, 104 S. Ct. at 2064, 2065, 80 L. Ed. 2d at 693, 694). Moreover, the evidence of defendant's guilt at trial was strong. The victim gave a statement and testified, defendant gave a statement, and there was DNA evidence. Accordingly, defendant also made no showing that he was prejudiced by any alleged ineffective assistance of counsel. Finally, we also agree with Judge Jerejian that there was no need for an evidentiary hearing because defendant did not present a prima facie case in support of post-conviction relief.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION