Opinion
DOCKET NO. A-4239-10T3
06-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD TOLEDO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.PER CURIAM
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-09-1484.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
Defendant pled guilty to two counts of murder, N.J.S.A. 2C:11-3(a), and one count of kidnapping, N.J.S.A. 2C:13-1(b), pursuant to a plea agreement. The charges arose from his beating two children, ages fourteen and seven, to death with a hammer in the basement of their home where he was renting a room from their mother. He then kidnapped the children's mother. Defendant does not deny his guilt for these offenses but appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was sentenced to consecutive terms of life imprisonment on the murder charges and a consecutive term of thirty years on the kidnapping count. In addition, the court ordered that he serve eighty-five percent of the life term before becoming eligible for parole on the first murder charge; that there be no parole eligibility on the second murder charge; and that he serve eighty-five percent of his sentence on the kidnapping charge before becoming eligible for parole.
Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. State v. Toledo, No. A-0891-08 (App. Div. May 1, 2009). The Supreme Court denied his petition for certification, 200 N.J. 208 (2009).
Defendant filed a pro se petition for PCR on December 30, 2009, in which he argued he was denied the effective assistance of counsel because trial counsel:
(a) failed to explore a defense of diminished capacity, after being informed by the defendant of numerous head injuries he had suffered as a child;
(b) Ordered two psychological evaluations on the defendant, but failed to request any diagnosis and/or results of the psychological evaluations that were done by Dr. Frank J. Dyer, Ph.D., and Dr. Richard Fillippone[;]
(c) failed to make sure that defendant properly understood that he was excepting [sic] a life sentence, that would consequently deprive him of ever being eligible of making it out of prison, knowing that he was suffering from anxiety, depression, and fear, from being assaulted numerous times in the County jail, and consequently being placed in Administrative Segregation due to circumstances beyond his control.
A brief and amended petition were submitted on behalf of defendant in August 2010. In this brief, defendant argued that he was denied the effective assistance of counsel because his attorney "failed to fully explain the plea and insure the plea was knowing and intelligent and not made because the defendant was lead [sic] to believe a plea would result in him being removed from solitary confinement[.]" He also argued that his sentence was unconstitutional.
Defendant submitted a pro se supplemental letter brief in support of his petition. In addition to the arguments raised previously, defendant argued that trial counsel was ineffective in failing to explore an "intoxication diminished capacity" defense.
The PCR court denied defendant's petition by order dated November 10, 2010.
Defendant presents the following issues for our consideration in his appeal.
POINT I
THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT DEFENDANT HAD NOT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF AND THAT THE ISSUE OF HIS CONSTITUTIONAL CHALLENGE TO THE 2007 AMENDMENT OF THE HOMICIDE STATUTE WAS PROCEDURALLY BARRED
POINT II
DEFENDANT'S TRIAL AND APPELLATE COUNSELS PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT
After reviewing defendant's arguments in light of the record and the applicable legal principles, we are satisfied that neither argument has merit.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).
Defendant's argument that trial counsel was deficient in failing to confirm that he understood the consequences of his guilty plea fails to satisfy either of these prongs. Defendant concedes that he was advised that his guilty plea to murdering the seven-year-old child would result in a sentence of life imprisonment without possibility of parole. In addition, he executed a written "Acknowledgement of Sentence of Life without Parole" in which he admitted to "purposely or knowingly causing the death of Zabdiel Gonzalez[,]" admitted that Zabdiel was seven years old at the time of the murder and that "I am pleading guilty to an aggravating factor pursuant to [N.J.S.A.] 2C:11-3c(4)(k), and I will be sentenced to life without parole at the time of my sentencing."
This aggravating factor is now listed as N.J.S.A. 2C:11-3b(4)(k).
Defendant argues that other information provided to him at the time of his guilty plea regarding deportation consequences and post-release parole supervision were inconsistent with the concept of a mandatory sentence of life imprisonment without parole and therefore had the capacity to confuse him. We are satisfied that both the court and counsel understood that the additional information was provided to address all known possible consequences of defendant's guilty plea. The record of his plea and his written acknowledgement clearly demonstrate defendant's understanding that he would be receiving a sentence of life imprisonment without possibility of parole.
Defendant also argues that the imposition of a life sentence without parole violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions, U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. We disagree.
We first summarize the law in effect at the time defendant murdered the two children on January 19, 2006, and was indicted on September 28, 2006. At that time, defendant was subject to the death penalty if the State could prove the knowing or purposeful homicide by his own conduct and one of the aggravating factors contained in N.J.S.A. 2C:11-3c(4), which included the factor that the victim "was less than 14 years old[.]" N.J.S.A. 2C:11-3b(4)(k). The death penalty could be imposed if the jury determined that the aggravating factors it found outweighed any mitigating factors it found. N.J.S.A. 2C:11-3c(3)(a); State v Bey, 112 N.J. 123, 158-59 (1988). In the event the jury failed to find that the aggravating factors did not outweigh the mitigating factors, N.J.S.A. 2C:11-3b(4) provided for a mandatory sentence of life imprisonment without parole.
The homicide statute was not amended to abolish capital punishment until December 17, 2007, approximately two months before defendant's guilty plea. The amendment provided for life imprisonment without parole in all murder cases that would have been eligible for the death penalty upon the finding of one or more enumerated aggravating factors. Following amendment, the murder statute read in pertinent part as follows:
a. [C]riminal homicide constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in death; or
(2) The actor knowingly causes death or serious bodily injury resulting in death;
. . . .
b.
. . . .
(4) Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct . . . shall be sentenced by the court to life imprisonment without eligibility for parole, which sentence shall be served in a maximum security prison, if a jury finds beyond a reasonable doubt that
any of the following aggravating factors exist:
. . . .
(k) The victim was less than 14 years old
Therefore, the facts that provided a basis for the death penalty under the statute in effect at the time of the murder and for life imprisonment without parole following the amendment were the same: the knowing or purposeful homicide by defendant's own conduct of a victim less than fourteen years old. It is undisputed that count two of the indictment provided defendant notice of the aggravating factor the State intended to rely upon in seeking the death penalty, "[t]hat the victim, Zabdiel Gonzalez, was less than fourteen (14) years old, pursuant to N.J.S.A. 2C:11-3c(4)(k)." Defendant does not argue that the State failed to present evidence of this aggravating factor to the grand jury. Therefore, the indictment provided adequate notice of the factor the State would rely upon and was supported by evidence presented to the grand jury regarding that aggravating factor. See State v. Fortin, 178 N.J. 540, 645-46 (2004) (Fortin I). We are satisfied that, under the circumstances, it was not necessary for the State to supercede the indictment to substitute citations to identical aggravating factors to afford defendant necessary constitutional protections.
We are also satisfied that defendant's reliance upon State v. Fortin, 198 N.J. 619 (2009) (Fortin IV), to support his ex post facto argument is misplaced. In Fortin IV, the Supreme Court concluded that the ex post facto clause was implicated if the sentence imposed upon defendant was not authorized under the law in effect at the time of the murder. Id. at 631. The murder at issue in Fortin was committed in 1994, before the 2000 amendments to the murder statute. As a result, a sentence of life imprisonment without parole could only be imposed if a jury had found the existence of both an enumerated aggravating factor and that the aggravating factors outweighed any mitigating factor. Id. at 633.
However, in this case, as in State v. Baylor, 423 N.J. Super. 578 (App. Div. 2011), certif. denied, ___ N.J. ___ (2012), the murders occurred after the 2000 amendments. In Baylor, we observed that the law in effect at the time of the defendant's crimes provided for the imposition of life without parole "if the jury finds at least one aggravating factor, regardless of whether there were any mitigating factors or whether those mitigating factors outweighed the aggravating factor or factors." Id. at 598 (citing Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:11-3 (2006)). We concluded that the imposition of life sentences without parole did not, therefore, violate the Ex Post Facto Clauses of the United States and New Jersey Constitutions. Id. at 598.
In this case, defendant admitted he had purposely and knowingly committed the homicidal act by his own conduct and also admitted the existence of the relevant aggravating factor. Because the criteria for the imposition of a life sentence without parole pursuant to the statute in effect at the time of the murders was satisfied, there was no ex post facto violation. Further, since this argument lacks any merit, it follows that defendant's argument that his counsel was ineffective in failing to present it must fail as well.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Further, we are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION