Date: 07-09-2016

Case Style: STATE OF NEW JERSEY VS. MARCOS A. RIVERA

Case Number: A-4580-13T2

Judge: Garry S. Rothstadt

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Christopher J. Gramiccioni; Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor

Defendant's Attorney: Joseph E. Krakora, Public Defender; William Welaj, Designated Counsel

Description: Defendant was convicted by juries in 1999 and 2000 of
attempted murder, aggravated assault, various weapons offenses,
and hindering apprehension.1 The sentencing court imposed an
aggregate sentence of twenty-one years imprisonment on May 12,
2003.
Defendant appealed and we affirmed his convictions, but
remanded for re-sentencing as to certain counts. See State v.
Rivera, No. A-6852-02 (App. Div. Oct. 17, 2006). The Supreme
Court denied his petition for certification. State v. Rivera,
189 N.J. 427 (2007).2
1 Defendant was tried twice. The jury in defendant's first trial convicted him of aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); acquiring a handgun without a permit, N.J.S.A. 2C:39-10(a), :58-3(a); possession of prohibited ammunition, N.J.S.A. 2C:39-3(f); and hindering apprehension, N.J.S.A. 2C:29-3(b); but could not reach a verdict as to the first three counts of the indictment, which charged him with attempted murder, N.J.S.A. 2C:5-1, :11-3; aggravated assault, N.J.S.A. 2C:12-1(b)(1); and aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). In the second trial, the jury found him guilty of attempted murder and, once it did so, did not consider the other two charges per the court's instruction.
2 After the court re-sentenced defendant to the same aggregate term, defendant appealed and by order dated September 27, 2007, we affirmed his sentence, except we vacated a four-year consecutive term imposed by the court and remanded again for a statement of reasons supporting the imposition of the consecutive term. State v. Rivera, No. A-3617-06 (App. Div. Sept. 27, 2007). We have not been provided with a copy of an amended judgment of conviction or any other document indicating of what occurred after the re-sentencing, though, according to (continued)
A-4580-13T2 3
The facts underlying defendant's convictions are set forth
in our opinion and need not be repeated here.
Defendant filed a PCR petition dated July 22, 2010, on
October 3, 2011,3 in which he argued "Trial and Appellate Counsel
Failed to Raise Ineffective Assist[ance] of Counsel." He also
identified additional arguments as: "Violations of 4th Amend,
Illegal search & seizure, failure to dismiss indictment,
violation of 5th Amend[, and] failure to raise dismissal of
Indictment Double Jeopardy grounds." In his pro se brief, he
argued he was "denied his right to confront the person who[]
prepared the statement [that] the prosecution relied upon to
[obtain] conviction[s] on the several firearms related
violation(s)." Specifically, he contended that counsel failed
to object to the admission of a written statement he gave to the
police, arguing that the State should have called the person who
transcribed his statement as he gave it, rather than the officer
who questioned him. He also argued that the prosecutor
(continued) representations by the State, PCR counsel, and the trial court, we affirmed the sentence in an order dated May 31, 2010.
3 Defendant wrote to the court in 2011 inquiring about the petition that he claimed he filed in August 2010. The court responded on June 6, 2011, telling him there was no record that a petition had been filed. Defendant re-filed the petition, and the court entered an order appointing counsel on June 29, 2012.
A-4580-13T2 4
committed a Brady4 violation by withholding "exculpatory
information from the defense," referencing statements he claims
he gave to police beyond the one admitted into evidence.
Defendant filed an amended petition through counsel in
early February 2012 that consisted of a certification from
defendant, in which he explained the difficulties he had filing
his PCR petition after the Supreme Court denied his petition for
certification and requested that his PCR petition not be time
barred. He also argued that his sentence was illegal,5 and
listed other reasons why his various attorneys rendered
ineffective assistance at different stages of this matter.6
The PCR court "dismissed" defendant's petition without
prejudice by order dated February 23, 2012, stating that the
court had not received the amended petition, and that,
[i]n the absence of receipt of an amended petition alleging facts showing that the
4 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
5 The trial court denied defendant's 2009 motion to correct an illegal sentence, and defendant never appealed the decision.
6 He added trial counsel's failure to seek to suppress his statement to police, failure to obtain his first statement to police, and failure "to object to judicial fact finding" at sentencing that led to the imposition of a parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also claimed appellate counsel was ineffective for not raising the issues he was bringing in his PCR petition on direct appeal or in a PCR petition.
A-4580-13T2 5
delay was due to the defendant's excusable neglect [and] that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice[,] the court may dismiss the petition.
On November 9, 2012, assigned counsel re-filed defendant's
original petition and certification, as well as a supplemental
brief. In the brief, counsel reiterated defendant's pro se
contention that trial counsel "was ineffective inasmuch as he
failed to object to testimony of [the police officer] who
essentially read an entire written statement of [defendant],"
which he argued was hearsay because it was not testified to by
the woman who transcribed the statement.
The PCR court denied defendant's petition on October 18,
2013, after considering counsels' oral arguments. In his
decision, Judge Richard W. English first addressed defendant's
contention that his petition was not time barred by Rule 3:22
12, rejecting defendant's arguments that the delay was caused by
counsel — who the court found was not even hired until after the
Rule's five-year time limit expired — and that he was prevented
from filing his PCR petition by the pendency of his petition for
certification and by his re-sentencing.
Nevertheless, Judge English addressed each of defendant's
claims of ineffective assistance of counsel. He first found
A-4580-13T2 6
that defendant's contention regarding testimony about his
statement to police was procedurally barred by Rule 3:22-4(a)
because the issue could have been raised on direct appeal, and,
in any event, was without merit. He stated:
This claim was not raised on direct appeal or in defendant's petition for certification to the New Jersey Supreme Court[,] nor has the defendant met his burden of demonstrating any of the three enumerated exceptions to Rule 3:22-4(a)['s][7] procedural bar to excuse his failure to raise a claim on direct appeal or in [a] petition for cert[ification].
7 In pertinent part, Rule 3:22-4(a) limits PCR petitions to matters not raised in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings . . . [,] unless the court . . . finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice . . . .
. . . .
A ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.
A-4580-13T2 7
. . . [T]his claim could reasonably have been raised in a prior proceeding because the factual predicate forming the basis of defendant's ineffective assistance of counsel claim was part of the trial record and therefore could have been discovered earlier through the exercise of reasonable diligence.
Next, the judge determined that the linchpin in defendant's
claim – that his statement was inadmissible hearsay – was simply
incorrect. He explained, "While defendant's statement did
qualify as hearsay under [N.J.R.E.] 801(a) through (c) and (e),
defendant's statement was nevertheless admissible under the
hearsay exceptions for statements made by party opponents,
[N.J.R.E.] 803(b)(1), and for statements against interest,
[N.J.R.E.] 803(c)(25)." Moreover, he observed that an objection
to the statement was in fact interposed at trial, as
demonstrated by the "trial court [having] conducted a pretrial
hearing pursuant to [N.J.R.E.] 104(c) and rul[ing] the
defendant's formal written statement was admissible." The PCR
judge therefore found there was no basis for an ineffective
assistance of counsel claim based on the statement's admission
into evidence.
Judge English found similarly meritless defendant's
argument resting on the claim that it was improper for the
officer to read defendant's statement that was transcribed by
someone else. The judge explained that "[d]efendant's argument
A-4580-13T2 8
. . . ignores the fact that [the] out of court statement moved
into evidence at his first trial was . . . not that of a
transcriber but rather it was defendant's own statement," and
concluded the statement was therefore admissible for the same
reason as the written statement.
The judge also found defendant's claim regarding counsel's
failure to address a Brady violation to be unsupported by fact
or law, stating:
Finally, the defendant claims that his due process rights were violated because the State failed to provide him with a witness list and a copy of his formal witness statement prior to trial is equally barred and meritless. [citation omitted.]
It's abundantly clear from the record that the State did in fact provide defendant and his attorney of a copy of defendant's formal written statement. Indeed, defendant's description of the shooting as unintentional in his formal statement arguably led to the jury at his first trial being hung on Count[s] 1, 2[,] and 3. Moreover, it's equally clear the State provided the defendant with a witness list prior to trial.
Finally, Judge English carefully analyzed and rejected
defendant's claims regarding counsel's failure to object to the
imposition of a sentence subject to NERA. He observed:
In the present matter[,] the offenses for which defendant was tried and convicted were committed prior to 2001, therefore the pre-amended version of NERA applies. The Act as it stood prior to 2001 required
A-4580-13T2 9
imposition of a mandatory prison term of 85 percent [of] the overall sentence for any first[-] or second[-]degree conviction that was found to constitute a violent crime. And the statute defines a violent crime as any crime in which the actor caused death or caused serious bodily injury as defined under this section, or the use or immediate use of a deadly weapon.
The original version of NERA also required a [c]ourt to conduct a hearing after the conviction of defendant in order to determine whether the violent crime predicate existed for the imposition of a mandatory term of imprisonment. That's 2C:43-7.2(e).
Here, contrary to defendant's assertions, [the sentencing judge] did hold a hearing, did make the necessary findings that defendant was convicted of a violent crime prior to imposing the NERA sentence on Count 1. . . .
Moreover, the defendant's claim of counsel's ineffectiveness for failing to object to the judicial fact finding is without merit. Defendant was tried, convicted, and sentenced prior to the New Jersey Supreme Court's decision in Johnson[8] and which the Court explicitly held was not retroactive. Although defendant's direct appeal was pending at the time that Johnson was decided, defendant did not argue on direct appeal that his NERA sentence on
8 State v. Johnson, 166 N.J. 523, 544 (2001) (holding that "the factual predicate for a NERA sentence must be found by a jury under the 'beyond a reasonable doubt' standard"). The holding was later superseded by an amendment to N.J.S.A. 2C:43-7.2 that made NERA's application automatic upon conviction for certain crimes, including attempted murder. See L. 2001, c. 129, § 1 (effective June 29, 2001).
A-4580-13T2 10
Count 1 violated the Court's ruling in Johnson.
The judge concluded that an evidentiary hearing was not
required because "no prima facie case of ineffective assistance
of counsel by either defense counsel was demonstrated by
defendant."
The judge entered an order denying defendant's petition.
This appeal followed.
On appeal defendant argues:
POINT I
THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12(a).[9]
POINT II
9 The Rule states:
Except as provided in paragraphs (a)(2), (a)(3), and (a)(4) of this rule, no petition shall be filed pursuant to this rule more than 5 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 the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
[R. 3:22-12(a)(1).]
A-4580-13T2 11
THE [PCR] 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.
We are not persuaded by either argument and affirm.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
the two-prong test of establishing both that: (1) 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, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064,
2068, 80 L. Ed. 2d at 693, 698.
We are satisfied from our review of the record that
defendant failed to make a prima facie showing of
A-4580-13T2 12
ineffectiveness of trial counsel under the Strickland-Fritz
test. We affirm the court's denial of defendant's petition
substantially for the reasons stated by Judge English in his
cogent and thorough oral decision, especially because, like
Judge English, we find no merit to any of defendant's
substantive claims, even if his petition was not procedurally
barred.

Outcome:

Accordingly, the PCR court correctly concluded that an
evidentiary hearing was not warranted, and properly denied defendant's
petition.
Affirmed.