Opinion
DOCKET NO. A-3227-13T4
09-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGEL L. SANTIAGO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-01-0008. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Angel L. Santiago appeals the July 19, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
I
A jury found defendant guilty of the sole count of an indictment charging him with first-degree murder, N.J.S.A. 2C:11-3(a)(1). On February 21, 2003, the trial court sentenced defendant to life imprisonment, thirty years to be served without parole. N.J.S.A. 2C:11-3(b). In an unpublished opinion, we affirmed the judgment of conviction. State v. Santiago, No. A-4194-02 (App. Div. Oct. 27, 2005). The Supreme Court denied certification. State v. Santiago, 186 N.J. 245 (2006).
A detailed summary of the facts developed during the trial can be found in our prior decision. State v. Santiago, (slip op. at 3-7). Suffice it to say that defendant repeatedly punched the five-month-old victim on at least two separate occasions in the night because the child cried. The child was dead when the family awakened in the morning.
The medical examiner testified that at least a dozen blows were struck during at least two separate episodes causing extensive external bruising and internal hemorrhaging. The child suffered significant tearing and damage to his liver, pancreas, kidneys, spine, and brain. Even his adrenal glands, which are rarely damaged except by extraordinary force such as from the impact of an automobile accident, were bruised. The medical examiner also testified that it would have been hours before the child died and that either the blows to the liver or the adrenal glands could have caused death.
Defendant confessed to the crime after the mother of his children, who alleged she was afraid of him because he had previously assaulted her, told the investigating authorities that she saw him punching the baby when she peered around a bedroom door in response to the baby crying at dawn. She was the victim's maternal aunt.
Defendant filed a pro se PCR petition on November 30, 2009. For unknown reasons, the petition was dismissed without prejudice. Defendant refiled his petition on July 26, 2011.
The order indicates the reason for dismissal was stated on the record. We do not have a transcript of that proceeding.
During oral argument on the PCR application, defendant's attorney contended that trial counsel was ineffective because he had limited contact with defendant, and because "the contact [defendant] did have with his trial attorney really revolved around accepting a plea agreement versus going to trial." PCR counsel further contended that trial counsel had not adequately prepared defendant to testify, did not discuss trial strategy with him, and was ineffective at sentencing because he failed to argue mitigating factors to the court.
After oral argument, on July 19, 2013, the judge rendered an oral decision denying the petition. A few days later, on July 24, the judge expanded his analysis in a written decision.
The judge initially found that defendant had not established any exceptional circumstances justifying his delay in filing. Additionally, the State was prejudiced by defendant's delay given the extended lapse of time between the commission of the crime in 2001, the judgment of conviction in 2003, and his PCR petition in 2009. Defendant did not identify any "injustice sufficient to relax the time limits of [Rule 3:22-12(a)(1)]." The judge therefore concluded the application was time-barred.
At oral argument, PCR counsel represented to the court that his client had at that moment informed him the delay resulted from his ignorance of the PCR process.
The judge also stated that even if not time-barred, defendant's application failed to establish a prima facie claim of ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as to trial investigation, the development of trial strategy, or the alleged failure to argue mitigating factors at the sentence hearing. Hence the judge ruled on the merits that defendant was not entitled to relief. This appeal followed.
II
A.
Defendant raises the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF HIS ATTORNEY'S FAILURE TO ADEQUATELY INFORM HIM WITH RESPECT TO THE STATE'S PLEA OFFER AS WELL AS THE STRENGTH OF THE STATE'S CASE, HE REJECTED THE PLEA RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN THE PLEA RECOMMENDATION.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698, and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted).
Further, in satisfying the second prong, because prejudice is not presumed, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668 n.26 (citation omitted). See also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We are persuaded that the alleged deficiencies here failed to meet both the performance and prejudice prongs of the Strickland test.
B.
First, turning to the time bar, Rule 3:22-12(a)(1), states:
no petition shall be filed pursuant to this rule more than five years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if theSubsection (c) of the rule specifically provides that the rule's "time limitations shall not be relaxed, except as provided herein." R. 3:22-12(c). None of the exceptions found in the rule apply.
defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
Furthermore, Rule 1:3-4(c) specifies that neither the court nor the parties may enlarge the time limit found in Rule 3:22-12. Before the 2009 amendments that resulted in the current version of the rule, relaxation of the five-year time bar was rare. See, e.g., State v. Cummings, 321 N.J. Super. 154, 168-71 (App. Div.), certif. denied, 162 N.J. 199 (1999); State v. Merola, 365 N.J. Super. 203, 218-19 (Law Div. 2002), aff'd, 365 N.J. Super. 82 (App. Div. 2003).
In this case, defendant's only explanation for the delay — not included in his verified petition, in an affidavit, or any certification — was ignorance of the process. That explanation has been previously rejected as grounds for relaxation of the time bar, even when added to other factors, such as a defendant's alleged difficulty reading and writing. Id. at 165-66. Thus defendant's ignorance of the process, standing alone, is insufficient. We therefore affirm the trial judge's decision regarding the time bar.
C.
Next, defendant contends that counsel was ineffective because he did not "adequately inform him with respect to the State's plea offer as well as the strength of the State's case." This asserted failure to communicate, which defendant claims resulted in limited pretrial investigation and pretrial planning, is supported by insufficient bare allegations alone. See Cummings, supra, 321 N.J. Super. at 168 ("Petitioner must offer something more than a bare allegation.") (citation omitted). Additionally, the argument on its face is contrary to the one raised before the PCR judge. Before that judge, PCR counsel argued that when defendant met with trial counsel, their conversations focused on the State's plea offer to the exclusion of any other consideration, such as trial strategy.
Defendant now argues on appeal that his trial attorney's supposed failure to communicate resulted in his rejection of the State's plea offer. Defendant's assertion that he was uninformed as to the strength of the State's case and the reduced sentence he would receive if he entered a guilty plea is not supported by the record.
We do not have a transcript for the August 5, 2002 court proceedings at which defendant's pretrial memorandum was signed in accordance with Rule 3:9-1(e). His signature acknowledged that the parties had engaged in good faith plea negotiations without success.
Approximately two weeks before the commencement of the trial, the judge conducted a Miranda hearing, after which he ruled defendant's confession was admissible. On the record, before beginning the hearing, the judge explicitly discussed the State's anticipated proofs, including the confession, if ruled admissible. He advised defendant that if convicted of murder, he would be sentenced to a minimum thirty years of parole ineligibility. The judge pointed out that defendant would serve less time if he agreed to a plea bargain than if the jury convicted him. The judge actually compared the notion that defendant could prevail at trial to thinking that he could pull a rabbit out of a hat. The judge closed his colloquy with defendant by saying "Do you want to — do you want to go on with the trial? You don't want to have the opportunity to try to re — reduce your sentence or do you want that opportunity?" Defendant responded, "No, I want to go ahead."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
At a minimum, defendant was familiar with the State's most important piece of evidence — his confession and that he stood to reap a reduction in sentence if he entered a guilty plea. And defendant does not identify any steps counsel could have taken that would have encouraged him to enter a guilty plea, or the nature of any trial strategy, or additional investigation that would have encouraged him to accept the plea bargain instead of proceeding to trial.
Without identifying what should have been done differently and how it would have affected the outcome, defendant falls short of establishing errors or lapses in counsel's preparation or representation that constitute ineffective assistance. Hence defendant's reliance on Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), is misplaced.
In Lafler, the defendant's claim was not disputed that trial counsel advised him to reject the plea offer based on counsel's misunderstanding of the law. Id. at 1384, 182 L. Ed. 2d at 406. In that case, prior to counsel's misguided but successful effort at convincing defendant to try the matter instead of pleading guilty, defendant readily admitted his guilt and said he was willing to accept the government's offer. Id. at 1383, 182 L. Ed. 2d at 405.
Those circumstances are a far cry from this case, where defendant does not describe anything counsel could have done differently that would have changed the outcome, except in generalities. Prior to the Miranda hearing, after the judge reviewed defendant's options with him in open court, defendant clearly said that he wanted to go to trial. Thus, even in the absence of the time bar, defendant has failed to establish a prima facie case. He has not demonstrated either the manner in which counsel's performance was deficient, or the manner in which the deficiency prejudiced the outcome. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION