Opinion
DOCKET NO. A-0599-14T1
12-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALBERTO SILVA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-07-01745. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Alberto Silva pled guilty in 2011 to four counts of a twenty-one count indictment, admitting to three counts of first-degree armed robbery and one count of second-degree aggravated assault. He was sentenced in accord with the plea agreement to incarceration for twelve years with an 85% parole disqualifier for the first-degree robbery charges and ten years with an 85% parole disqualifier on the aggravated assault charge, to run concurrently. He did not file a direct appeal.
Defendant also pled guilty to one count of another indictment for possession of a controlled dangerous substance. Defendant did not raise any issue relating to that plea in his petition.
All four victims of these crimes provided statements identifying their assailant as a Hispanic male who wielded a gun. One of the victims was familiar with defendant from her neighborhood. Another victim identified defendant as her assailant as he was walking through the police station. All four victims picked defendant out of a photographic array shortly after the crimes occurred. His appointed attorney did not interview these victims.
This is defendant's first application for post-conviction relief ("PCR"). The petition was denied by Judge Ronald D. Wigler who also denied defendant's request for an evidentiary hearing. We affirm Judge Wigler's denial of this PCR application largely for the reasons he expressed in his written opinion of August 21, 2014.
Defendant raises the following points:
POINT I
DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF
POINT II
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF
(A) Counsel was ineffective for failing to move to dismiss the indictment for prosecutorial misconduct and juror bias
(B) Counsel was ineffective for failing to investigate and interview the alleged victims for issues of credibility prior to advising defendant on a plea
(C) Counsel was ineffective for failing to make any meaningful challenge to the witness identification prior to advising Defendant to plead guilty
POINT III
THE DEFENDANT'S CONVICTION AND SENTENCE MUST BE VACATED BECAUSE NO SUFFICIENT FACTUAL BASIS WAS ELICITED FROM THE DEFENDANT TO SUPPORT HIS GUILTY PLEA
The petition for PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). It is not a substitute for direct appeal nor a vehicle to relitigate the underlying merits. R. 3:23-2; State v. Preciose, 129 N.J. 451, 459 (1992).
An accused has the right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and under Article I, ¶ 10 of the New Jersey Constitution. Nash, supra, 212 N.J. at 541; State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie case of ineffective assistance, a defendant must show that counsel made an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Counsel's representation must be reasonable under prevailing professional norms. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Defendant also must show that the deficient performance of counsel prejudiced the defendant. Id. at 687. There must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." O'Neil, supra, 219 N.J. at 611 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Here, defendant admits he has no "substantive" proof he asked his attorney to appeal. Instead, he relies on a certification not signed in compliance with Rule 1:4-4(c) with a signature line for a different individual as his evidence. Defendant was advised at sentencing of his right to appeal and the time restrictions for doing so. On these proofs, we find no error by the PCR court in rejecting this claim.
Defendant contends his attorney should have asked to dismiss the indictment because at one point before the grand jury, the prosecutor referred to defendant as a "co-conspirator." We agree with the PCR court this was not "deficient performance" under Strickland. Indictments are presumed valid and "should be dismissed only upon the clearest and plainest ground and only if palpably defective." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997). Here, the one word reference to defendant as a "co-conspirator" used in presenting the conspiracy charge was to clarify the involvement of defendant and his brother in one of the robberies. It would not have provided a basis to move to dismiss the indictment and, thus, did not reflect negatively on counsel's performance. There was ample additional evidence as to the underlying elements of the crimes.
We find no error by the PCR court in rejecting defendant's claim of grand jury bias. In the transcript, one juror was recorded as stating, "I don't want to see him get away." The PCR judge found the comment was made "after the presentation of witnesses and evidence against the defendant" and likely "was of a reactionary nature, rather than indicative of juror bias." Defendant has not shown what objective standard of performance his counsel failed to meet given the timing of the statement which was after the presentation of witnesses and evidence, or even how this statement reasonably could have resulted in a different outcome given the totality of the proofs that already had been presented to the grand jury.
We also find no error by the PCR court in rejecting defendant's claim his attorney should have interviewed the crime victims prior to advising defendant on the plea. Counsel "has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary." State v. Cooper, 410 N.J. Super. 43, 58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). When there is an allegation counsel inadequately investigated the case, defendant must assert facts that an investigation would have revealed, supported by an affidavit or certification. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, where an attorney "made an objectively reasonable decision" not to act based on his assessment of the particular facts of the case, an attorney's actions fall "within the wide range of reasonable professional assistance" to which an accused is entitled. State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Here, the PCR court correctly concluded defendant did not show inadequate investigation. Defendant's trial counsel already had the relevant police reports, transcripts of the victims' grand jury testimony, and copies of the photo arrays. He showed defendant the surveillance video taken in connection with the first robbery. Importantly too, defendant articulated no facts showing prejudice, meaning that he showed no "reasonable probability" that something might change were the victims interviewed given this substantial record. For instance, the PCR court found there was no indication of "discrepancies in the accounts" provided by the victims and no indication of "a measure of unreliability in the official reports." There was nothing in the record to say defense counsel neglected to meet or refused to meet with the victims, who, in any event, had no obligation to meet with him. Therefore, we agree with the PCR court there was no deficiency under Strickland.
The PCR court rejected defendant's claims that his attorney did not make a "meaningful" challenge to the out-of-court witness identifications and should have requested a "Wade" hearing, finding, instead, there was no evidence of "impermissible suggestiveness." We find no error in this result.
The reference is to State v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). --------
In 2011, when defendant was indicted, pled guilty and was sentenced, the framework by which to determine the admissibility of out-of-court identifications was comprised of two inquiries. First, the court was to decide whether the procedure in question was impermissibly suggestive. Manson v. Braithwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 2249, 53 L. Ed. 2d 140, 149 (1977); State v. Madison, 109 N.J. 223, 232 (1988) (adopting the Manson-Madison test in New Jersey). Second, if so, it had to then decide whether the objectionable procedure resulted in a "substantial likelihood of irreparable misidentification." Manson, supra, 432 U.S. at 107, 97 S. Ct. at 2249, 53 L. Ed. 2d at 149; Madison, supra, 109 N.J. at 232. The totality of the circumstances was to be considered including such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's description of the criminal, the level of certainty of the identification demonstrated by the witness, and the length of time between the crime and the eyewitness identification. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 153.
Defendant relies on State v. Henderson, 208 N.J. 208, 218 (2011). In Henderson, the Court adopted a different approach from that set forth in Manson-Madison and now requires, among other things, that defendant show "some evidence of suggestiveness that could lead to a mistaken identification" in order to obtain a pre-trial hearing on eyewitness identification evidence. Then, if defendant makes this showing, the State must offer proof "to show the proffered eyewitness identification is reliable[.]" Id. at 288. However, Henderson was not in effect when defendant was sentenced and so does not apply to his case.
Here, applying Manson-Madison, the judge found no impermissible suggestiveness from the photographs that were used for the out-of-court identification, finding the photographs, which he also viewed, each showed similarly featured Hispanic males all with short hair and identical facial hair with no significant skin color variation. Based on this factual finding, there was sufficient basis to reject the need for a Wade hearing and no error in the court's conclusion the Strickland test was not met.
Finally, defendant contends that questions posed to him during his guilty plea hearing, eliciting "yes" or "no" answers, failed to establish an appropriate factual basis under Rule 3:9-2. We affirm the PCR court's rejection of this claim.
We observe first that defendant could have raised this issue on direct appeal. "Post-conviction relief is not a substitute for a direct appeal[.]" State v. Guzman, 313 N.J. Super. 363, 372 (App. Div.), certif. denied, 156 N.J. 424 (1998). Rule 3:22-4 limits what can be raised on PCR. The defendant was present when the factual basis questions of the plea were put to him. It was not something he could not discover "earlier through the exercise of reasonable diligence." Ibid. The defendant does not contend that denial of relief here would be "contrary to a new rule of constitutional law." Ibid. This then was not procedurally an appropriate issue for PCR.
Judge Wigler properly rejected the claim in any event. He found the questions asked "were clear and concise," that the defendant "responded unequivocally to each and every question," that the inquiry "discussed the details of each crime and the manner in which the petitioner committed those crimes" and that "all the necessary elements of each crime in the plea" were established. This then is not a case like State v. Owczarski, 236 N.J. Super. 52, 53 (Law Div. 1989), upon which defendant relies, where no colloquy whatsoever occurred concerning defendant's understanding of the pleas. Here, the essential elements of the offense were supported by a sufficient factual basis. State v. Urbina, 221 N.J. 509, 526 (2015) ("[I]t is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail." (quoting State v. Campfield, 213 N.J. 218, 236 (2013))). We find no error in the PCR court's decision to reject this and defendant's other claims as well as the correlative request for an evidentiary hearing. A court is not required to provide an evidentiary hearing where the defendant's allegations are "too vague, conclusory, or speculative." State v. Porter, 216 N.J. 343, 355 (2013) (quotations omitted).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION