STATE OF NEW JERSEY VS. FELIX RIVERA (17-05-0325, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5487-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FELIX RIVERA, a/k/a
FELIX RIVERA-PADILLA,
Defendant-Appellant.
_________________________
Submitted November 18, 2020 – Decided December 17, 2020
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-05-0325.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Kelsey A. Ball, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Felix Rivera appeals from a February 14, 2017 Family Part
decision1 granting the State's application to waive defendant, who was then a
sixteen-year-old juvenile charged with first-degree murder, to adult court.
(Da75-88). He also appeals from his May 11, 2018 sentence. We affirm.
We derive the following facts from the record. The State's sole witness,
Sergeant Johnny Ho of the Union County Prosecutor's Office, provided the
following testimony at the waiver hearing.
On April 21, 2015, sometime around 9:00 p.m., seventeen-year-old Oscar
Martinez Alvarez was fatally shot with a nine-millimeter gun. A cell phone was
recovered from the victim's body and subsequently searched pursuant to a
warrant for information relating to the crime. The investigation revealed the
homicide was gang-related and identified defendant (a/k/a Chaco), Juan Antonio
Barraza (a/k/a Shaggy), and Juan Diego Delgado (a/k/a Pana) as the individuals
involved in the homicide. The investigation further identified defendant as the
shooter. Defendant emigrated to the United States from El Salvador in 2013.
As part of his investigation, Sergeant Ho interviewed the following
individuals associated with the street gang, the Mara Salvatrucha (commonly
1
The record does not include a corresponding order. Only the court's written
opinion was provided.
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2
known as MS-13): Oscar Antonio Porteo-Guzman, Delgado, Alex Saldona
(a/k/a Puma), and Barraza, who is a high-ranking member of MS-13.
Porteo-Guzman stated he knew the victim by the nickname "Moscow" and
"believed that [the victim] was [a] MS-13 member . . . but may have been trying
to switch to a different street gang." He also stated that on the day of the
homicide, he received a phone call from Barraza who asked him to meet up with
Barraza, Delgado, and defendant "to do something bad." Porteo-Guzman further
stated that on the day after the homicide, he received a phone call from defendant
who told him they (defendant, Barraza, and Delgado) "scored four goal[s],"
which was code for "four shots or four bullets." Sergeant Ho testified Porteo -
Guzman consented to a search of his cell phone; the search corroborated Porteo-
Guzman's statements in that his cell phone contained Barraza, Delgado, and
defendant's cell phone numbers and they were in contact as described by Porteo-
Guzman.
Delgado stated he knew the victim by the nickname Dorsey and that the
victim "was affiliated [with] the MS-13 gang, but . . . believed [the victim] was
playing both sides, that being with the MS-13 and the 18th Street gangs."
Delgado acknowledged he met with defendant and Barraza and "made plans to
get the victim to meet with them" to "do something to him." Delgado stated he
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contacted the victim to get him out of the house and met with him near the scene
of the homicide. Delgado also stated defendant shot the victim. A search of
Delgado's cell phone records revealed he called the victim as indicated in his
statement.
Saldona stated that on the day of the homicide, he received a three-way
call from Porteo-Guzman and Barraza asking him to meet up with them. At the
time, Saldona was on the phone with the victim. Saldona responded to Porteo -
Guzman and Barraza that he "was too tired and he did not want to go out."
Barraza stated he "believed the victim was a rat, that was trying [to]
infiltrate the MS-13 organization." He acknowledged meeting up with
defendant and Delgado on the day of the homicide to discuss "their plans to get
the victim." Barraza stated defendant had a gun and the plan "was to contact the
victim and get the victim to come out of the house" and "to take him up to the
train tracks." Barraza also stated he was not present at the scene but was nearby
and "heard three or four shots." Barraza further stated defendant and Delgado
contacted him afterwards and "told him that it was done."
In July 2015, the State filed a juvenile delinquency complaint against
defendant charging him an act of juvenile delinquency that if committed by an
adult would constitute first-degree murder, N.J.S.A. 2C:11-3(a)(1). The State
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4
moved to waive defendant to adult court pursuant to N.J.S.A. 2A:4A-26.1. The
State provided a detailed statement of reasons in support of its motion, including
consideration of the eleven factors enumerated in N.J.S.A. 2A:4A-26.1.
Defendant submitted a biopsychosocial assessment performed by Cecilia
Alfonso, a licensed clinical social worker. The assessment describes defendant's
past and was "intended to identify some of the factors that may have contributed
to [his] legal situation." It noted defendant was born in El Salvador in July 1998,
entered the United States illegally, and arrived in New Jersey to live with his
mother in May 2013. After disobeying curfews imposed by his parents, he was
locked out of the house "and began causally living with girlfriend[s] and his
peers."
Defendant does not speak English. After initially earning mixed grades,
defendant started failing school during tenth grade. He claimed he was
subjected to threats and bullying by his schoolmates. Defendant began
associating with members of MS-13 but claimed he was never a member of the
gang. Alfonso noted that MS-13 maintains itself "and their members through
intimidation, violence, and criminal acts." Defendant was drawn to and began
socializing with known MS-13 members.
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Defendant began smoking marijuana about a year after entering the United
States. His usage increased to smoking six or seven joints a day. He denied
using any other drugs.
Defendant complied with the rules at the juvenile detention center and was
assigned to the Detail Unit for his good behavior. Combined with his grades,
Alfonso found this "indicate[d] that he ha[d] the capacity to adapt his behavior
and learn from his experience." She further found that, "[w]ith support, he could
have been more engaged in his academics and limited his exposure to gang
members."
Alfonso concluded that the following biopsychosocial factors should be
considered when determining if it is appropriate to treat defendant as an adult
during his criminal proceedings: (1) lack of maturity due to incomplete frontal
lobe brain development; (2) loss of his nurturing extended family when he came
to the United States; (3) having to maintain a low profile because mother was
undocumented; (4) living in a community with a significant level of gang
violence; (5) attending a school that academically underperformed; (6) being
repeatedly subjected to threats, intimidation, and assaults; (7) not receiving an
individualized education plan; (8) adapting well at the juvenile detention center;
and (9) exhibiting academic potential.
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Alfonso opined that defendant's "capacity to control impulses, ability to
think of the consequences of his behavior, and skills in communicating
effectively [were] not yet fully developed."
The court conducted the waiver hearing on December 22, 2016. Sergeant
Ho was the State's sole witness. Defendant did not call any witnesses. The court
issued a February 14, 2017 written opinion granting the State's motion for
involuntary waiver of defendant to adult court. It concluded that the State: (1)
"presented sufficient proofs to create a 'well-grounded suspicion or belief that
the juvenile committed the alleged crime,' thereby satisfying the probable cause
standard"; and (2) "did not abuse [its] discretion in seeking to waive [defendant]
from the Chancery Division, Family Part, to the Law Division, Criminal Part."
As to probable cause, the court recounted Sergeant Ho's testimony and
found "sufficient evidence exist[ed] to support the belief that [defendant] was
the perpetrator of the alleged crime." It stated the "evidence and testimony
presented indicate[d] [defendant], along with two other individuals, conspired
against the victim and executed a plan to kill the victim due to the suspicion or
belief that he was playing both sides between the MS-13 gang and the Eighteen
Street gang." The court noted "sworn statements taken from Mr. Barraza and
Mr. Delgado[] identify [defendant] as the principle actor and shooter in the
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homicide of the victim." The court also noted "the victim's phone records
confirm Mr. Barraza and [defendant] were in communication, shortly before and
after the death of the victim."
The court rejected defendant's contention that "DNA evidence or in-court
identification, [was] essential to support a finding of probable cause." It
explained that "a showing of probable cause 'need not equal a prima facie case
required to sustain a conviction'" and that "a probable cause finding is not a
determination of guilt or innocence, but only a finding that there is sufficient
evidence to proceed with [the] charges." (citations omitted).
As to defendant's claim that the prosecutor's office abused its discretion
in applying for waiver, the court provided the following analysis of the State's
consideration of the eleven statutory factors:
a) The nature and circumstances of the offense charged
The State contends that [defendant] is charged
with the most serious crime in the criminal code,
murder. The State further argues that [defendant]
acting in concert with two other members of the MS-13
gang executed a plan to murder the victim. The State
contends that [defendant] possessed a gun on the date
of the homicide and shot the victim four times . . . .
b) Whether the offense was against a person or
property, allocating more weight for crimes against the
person
A-5487-17T4
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The State argues the offense in this case was
against a person, specifically causing the death of the
victim . . . .
c) Degree of the [j]uvenile's culpability
The State argues that sworn statements from Mr.
Delgado and Mr. Barraza indicate [defendant] as the
shooter in the death of the victim. The State argues that
[defendant] acted in concert with his accomplices,
completed the act by shooting the victim four times
after the victim was lured to the railroad track under the
mistaken belief that he would be smoking marijuana
with Mr. Delgado. Therefore, the State maintains that
[defendant] is highly culpable . . . .
d) Age and maturity of the [j]uvenile
The State contends that [defendant] was sixteen
(16) years old at the time of the homicide[] . . . [which
is] one year over the statutorily required age of fifteen
....
e) Any classification that the juvenile is eligible for
special education
The State contends that it did not receive any
information from [defendant] or the [c]ourt indicating
[defendant] was classified for special education.
f) Degree of criminal sophistication exhibited by the
juvenile
The State argues that the level of [defendant's]
criminal sophistication is illustrated by his participating
in a successful gang-related scheme to commit murder.
The State asserts [defendant] shot the victim four times,
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ending the victim's life because of a gang related feud
....
g) Nature and extent of any prior history of delinquency
of the juvenile and dispositions imposed for those
adjudications
The State asserts [defendant] does not have any
prior history of delinquency.
h) If the juvenile previously served a custodial
disposition on a state facility and the response of the
juvenile to the programs provided in the facility
The State asserts [defendant] has not served a
custodial disposition.
i) Current or prior involvement of the juvenile with
child welfare agencies
The State contends that it did not receive any
information from [defendant] or the [c]ourt indicating
any involvement with child welfare agencies.
j) Evidence of mental health concerns, substance
abuse[,] or emotional instability of the juvenile
The State considered the report of Cecilia
"Cessie" Alfonso as provided by [defendant]. The State
contends that the assertions regarding [defendant's]
upbringing does not rise to the level of a "mental health
concern." The State acknowledges that losing one's
father at a young age, having a parent move to another
country, and then illegally entering the United States
could be dramatic. However, the State contends
[defendant] was raised in an intact family.
A-5487-17T4
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The State rejects the notion that any emotional
instability due [to] his upbringing contributed to his
crime or otherwise excuses his behavior. The State
argues that [defendant] does not have any adjudications
for drug related offenses. The only indication of
[defendant's] substance abuse is his self-report . . . .
k) If there is an identifiable victim
The State asserts that [defendant] is charged with
the victim's murder. As such, the victim is unavailable
to provide any input.
The court noted that the State considered the biopsychosocial assessment
of defendant but contended Alfonso was not qualified to render an opinion on
juvenile waiver.
The court found that the State's decision to seek waiver "was based upon
consideration of all the relevant factors," did not include consideration of "any
irrelevant or inappropriate factors," and "followed the guidelines prescribed by
the new waiver statute." It concluded that "[t]he State's Statement of Reasons
demonstrate[ed] that the decision to seek waiver was made after a reasoned,
qualitative evaluation of each factor[] as they apply to [defendant]."
Accordingly, the court found "the State's decision to seek waiver . . . did not
amount to a clear error in judgment" since "most of the factors[] weigh[ed]
heavily against [defendant] and in favor of waiver."
A-5487-17T4
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The court noted that: (1) defendant was sixteen years old at the time of
the homicide; (2) defendant was charged with a waivable offense; (3) the offense
was committed against a person, causing his death; and (4) sworn statements
from Delgado and Barraza "indicate [defendant] possessed a gun on the date of
the homicide and was the shooter."
In May 2017, a Union County Grand Jury returned an indictment charging
defendant with: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one);
first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3 (count
two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count three); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1) (count four); and first-degree gang criminality, N.J.S.A.
2C:33-29(a) (count five).
In March 2018, defendant entered into a plea agreement in which he pled
guilty to count one, as amended to first-degree aggravated manslaughter. 2 In
exchange, the State agreed to dismiss all remaining charges and recommended
a twenty-five-year sentence, subject to an eighty-five percent parole disqualifier
under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court
2
An individual convicted of first-degree aggravated manslaughter "may . . . be
sentenced to ordinary term of imprisonment between [ten] and [thirty] year s."
N.J.S.A. 2C:11-4(c).
A-5487-17T4
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accepted defendant's plea, finding he entered into the plea agreement
"knowingly, voluntarily, and intelligently."
On May 4, 2018, the court sentenced defendant to a twenty-five-year term,
subject to an eighty-five percent period of parole ineligibility and a five-year
period of parole supervision upon release pursuant to NERA. The court also
imposed the requisite fines and penalties and awarded defendant 1050 days of
credit for time served. Defendant is subject to deportation upon release from
prison.
In reaching its decision, the court rejected defendant's request to find
mitigating factors three (defendant acted under strong provocation), four
(substantial grounds existed tending to excuse or justify defendant's conduct),
and eight (defendant's conduct resulted from circumstances unlikely to recur)
but found mitigating factor seven (lack of criminal history). N.J.S.A. 2C:44-
1(b)(3), (4), (7), (8). It found aggravating factors three (risk of reoffending),
five (substantial likelihood defendant is involved in organized criminal activity),
and nine (need for deterrence). N.J.S.A. 2C:44-1(a)(3), (5), (9). The court
concluded the aggravating factors outweighed the mitigating factors.
In finding aggravating factor five, the court found that defendant was
involved in organized criminal activity, noting the purpose of a "criminal street
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gang, such as MS-13, is to commit crimes of atrocity and devastations, as
evidenced in this case."
In applying aggravating factor nine, the court found a need for both
general and specific deterrence. It stated that criminal organizations such as
MS-13 "have to understand that their crimes here will be aggressively pursued
by law enforcement within the means of the law, that individuals who commit
such atrocities, that no expense will be avoided to apprehend those individuals
and bring them to justice." The court added:
[A] very severe penalty will be meted out, not only to
dignify that suffered by the victims and the victim's'
families and the victims' families community, but also
of the general public, an aspect of dignity to them for
the fear and misery and terror that our communities, on
a daily basis, withstand because of the mayhem and
violence inflicted upon it by street gangs and by
individuals such as [defendant].
Finally, the court stated it considered the non-statutory factors outlined in
Miller v. Alabama, 567 U.S. 460 (2012). The court noted defendant's age at the
time of the crime and found "the plea in place adequately incorporate[d] those
non-statutory factors," noting that if defendant were convicted at trial, his
sentence "could be substantially in excess."
The court added the following comments:
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Mr. Rivera, your native country of El Salvador is
in utter chaos. In large measure, because of the lawless
manner in which MS-13 has been able to override all
conventional institutions, whether it [be] law
enforcement, the judicial system, and the like.
And so there are folks, like your family, and
thousands of others who come to this country looking
to the very best ideal of America. And that is that
America and its people will provide a new opportunity,
a safer opportunity.
And your actions in this case besmirch and insult
not only the ideals of America, but the incredible hard
work and desperate measures that so many people
undertake to somehow find themselves here. And for
that, you should be ashamed.
This appeal followed.
Defendant raises the following points for our consideration:
POINT I
THE FAMILY COURT ERRED WHEN IT GRANTED
THE STATE'S MOTION TO WAIVE DEFENDANT
TO ADULT COURT BECAUSE THE STATE HAD
FAILED TO MEET ITS EVIDENTIARY BURDEN
AND ABUSED ITS DISCRETION.
(1) As the State Did Not Meet Its Evidentiary
Burden, the Trial Court Erred When It Granted
the State's Application for a Juvenile Waiver.
(2) The State Abused Its Discretion When It Filed
an Application for a Juvenile Waiver.
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POINT II
MR. RIVERA IS ENTITLED TO RESENTENCING
AS THE TRIAL COURT FAILED TO ANALYZE
AND APPLY THE MILLER/ZUBER3 YOUTH
FACTORS AND SHOWED A POLITICAL BIAS
AND HOSTILITY TOWARDS HIM. (Partially Raised
Below).
POINT III
TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO PROVIDE EVIDENCE IN FAVOR OF
THE MILLER/ZUBER FACTORS AND MR.
RIVERA'S REHABILITATION WHILE [] HE WAS
DETAINED IN COUNTY JAIL FOR MORE THAN
TWO YEARS. (Not Raised Below).
I.
We review a juvenile waiver determination under an abuse of discretion
standard, which requires that "findings of fact be grounded in competent,
reasonably credible evidence" and "correct legal principles be applied." In re
State ex rel. A.D., 212 N.J. 200, 214-15 (2012) (quoting State v. R.G.D., 108
N.J. 1, 15 (1987)). We will modify the Family Part's waiver determination "only
when there is a clear error of judgment that shocks the judicial conscience." Id.
at 215 (quoting R.G.D., 108 N.J. at 15). However, appellate courts need not
defer to trial court findings if "the trial court acts under a misconception of the
3
State v. Zuber, 227 N.J. 422 (2017).
A-5487-17T4
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applicable law." State in the Interest of T.M., 412 N.J. Super. 225, 231 (App.
Div. 2010).
N.J.S.A. 2A:4A-26.1(c)(1) vests the State with discretion to seek a waiver
of Family Part jurisdiction for certain specified offenses committed by a juvenile
fifteen years of age or older. "[T]he court shall waive jurisdiction of a juvenile
delinquency case" if "[t]he juvenile was [fifteen] years of age or older at the
time of the alleged delinquent act," and "[t]here is probable cause to believe that
the juvenile committed a delinquent act which if committed by an adult would
constitute" certain enumerated crimes, including, criminal homicide and
possession of a firearm for an unlawful purpose. N.J.S.A. 2A:4A-26.1(c)(1),
(2)(a), (2)(j).
We affirm the Family Part's order waiving defendant to adult court
substantially for the reasons expressed by Judge Candido Rodriguez, Jr. in his
February 14, 2017 written opinion. We add the following comments.
Defendant contends the State did not establish probable cause for the
charges because it improperly relied on hearsay and double hearsay. We
disagree.
"Probable cause is a well-grounded suspicion or belief that the juvenile
committed the alleged crime." State v. J.M., 182 N.J. 402, 417 (2005) (citing
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State v. Moore, 181 N.J. 40, 45 (2004)). A "trial court should find probable
cause if the evidence presented and the reasonable inferences supported by that
evidence give rise to a well-grounded suspicion or belief in the juvenile's guilt."
A.D., 212 N.J. at 221.
A juvenile is not entitled to a favorable inference if the State failed to
produce witnesses who may have knowledge of the facts. See State in Interest
of J.L.W., 236 N.J. Super. 336, 347 (App. Div. 1989). On the contrary,
"[p]robable cause may be established on the basis of hearsay evidence alone,
because a probable cause hearing 'does not have the finality of trial[]' and 'need
not be based solely on evidence admissible in the courtroom.'" State in Interest
of B.G., 247 N.J. Super. 403, 409 (App. Div. 1991) (citations omitted). Sergeant
Ho's testimony relating to the statements he obtained from the four MS -13
members was properly considered by the court in determining whether probable
cause was established.
The State presented ample evidence to establish probable cause.
Witnesses identified defendant as the shooter. His cell phone records
corroborated his involvement. The trial court properly determined that the
evidence presented at the probable cause hearing and the reasonable inferences
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derived from that evidence "g[a]ve rise to a well-grounded suspicion or belief
that [defendant] committed the offenses charged." A.D., 212 N.J. at 226.
Defendant also contends the State abused its discretion by failing to
sufficiently consider the biopsychosocial assessment in deciding whether to seek
waiver. He argues "the State failed to sufficiently consider his age and maturity;
degree of criminal sophistication by the juvenile; nature and extent of any prior
history of delinquency of the juvenile and dispositions imposed for those
adjudications; evidence of mental health concerns, substance abuse, or
emotional instability of the juvenile." We are unpersuaded.
"[A] juvenile seeking to avoid the 'norm' of waiver . . . when probable
cause is found to exist, must carry a heavy burden to clearly and convincingly
show that the [State] was arbitrary or committed an abuse of [its] considerable
discretionary authority to compel waiver." State in re V.A., 212 N.J. 1, 29
(2012).
Notably, the biopsychosocial assessment did not diagnose defendant as
suffering from any thought or mood disorders. See N.J.S.A. 2A:4A-
26.1(c)(3)(j). It did not recommend evaluation by a psychiatrist or psychologist
or any form of treatment. It did not opine that defendant had a low I.Q. or was
classified for special education. See N.J.S.A. 2A:4A-26.1(c)(3)(e). Most
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importantly, it did not conclude that his criminal acts were caused by the
biopsychosocial factors that it enumerated.
Despite objecting to the Alfonso's qualifications, the prosecutor
considered the assessment, as did the court. Moreover, to the extent that the
assessment discusses defendant's good behavior while detained and his
"capacity to adapt his behavior and learn from his experience," the amendments
to the waiver statute eliminated the probability of rehabilitation as a factor to be
considered. See A.D., 212 N.J. at 216; Pressler & Verniero, Current N.J. Court
Rules, cmt. 4, 4.2 on R. 5:22-2 (2021).
Based on our careful review of the record, we discern no abuse of
discretion warranting our intervention. Defendant did not demonstrate that the
prosecutor clearly and convincingly abused her discretion in considering the
statutory factors. The record fully supports the court's findings and conclusions,
and we are satisfied there was no denial of justice under the law.
II.
We next address defendant's argument that he should be resentenced
because the Family Part judge failed to apply the Miller/Zuber youthful offender
factors and showed a political bias towards him. We disagree.
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On May 4, 2018, defendant was sentenced to a twenty-five-year NERA
term. He will be eligible for parole after serving eighty-five percent of that term
(equating to twenty-one years and three months). Defendant was awarded 1050
days of jail credit. Consequently, he will be eligible for parole on or about
September 18, 2036, when he will be only thirty-eight years old. Even if he is
denied parole and maxes out, he will be only forty-one years old when released.
In State v. Bass, 457 N.J. Super. 1, 13-14 (App. Div. 2018), certif. denied,
238 N.J. 364 (2019), we held that a life sentence with a thirty-five-year parole-
bar was not the functional equivalent of a life sentence, and thus, the defendant
was not entitled to resentencing under Zuber, even though the sentencing court
had not considered the Miller factors when it imposed his sentence. We further
held that any rehabilitative actions the defendant had taken while incarcerated
were matters for the parole board to consider and did not render the sentence
unconstitutional. Id. at 14. In contrast to Bass, defendant was not sentenced to
life and is subject to a much shorter period of parole ineligibility.
A twenty-five-year NERA term that results in a twenty-one-year and
three-month parole-bar is far from a de facto life sentence when imposed on a
juvenile, who will eligible for parole by age thirty-eight and must be released
before his forty-second birthday. In the absence of a premature death, defendant
A-5487-17T4
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will have the opportunity to spend meaningful years outside of prison. Thus, he
is not entitled to resentencing under Miller or Zuber.
Defendant also argues that he is entitled to resentencing because the
sentencing court's "intemperate remarks" relating to his "duty as an immigrant,
the present situation in El Salvador, and MS-13's alleged mandate to commit
atrocities, showed bias and hostility towards him." We find no merit to this
argument.
Defendant mischaracterizes most of the court's comments, which were
made as part of its analysis of the aggravating factors. For example, the court
commented on the "mayhem and violence inflicted upon it by street gangs and
by individuals such as [defendant]" in support of aggravating factor nine (need
for deterrence). The court's comments on the conditions in El Salvador and the
immigrants who flee it for a better life do not show bias or hostility against
defendant, his country of origin, or the people of El Salvador.
The remarks were seemingly aimed at expressing disapproval of
defendant committing a gang-related homicide involving MS-13. Any apparent
frustration displayed by the court related to defendant's family immigrating to
the United States to make a better life and paying smugglers to bring their son
here to avoid the rampant gang violence and recruitment perpetrated by MS-13
A-5487-17T4
22
in San Miguel and the harassment and assaultive behavior commonly engaged
by the police in that city. Despite those efforts, defendant chose to associate
with members of MS-13.
Viewed in this context, the court's comments do not reflect any cultural
bias or hostility toward defendant. Nor do we find that the sentencing
proceeding was in any way tainted, even if the trial court's remarks might be
considered inappropriate. See State v. Friedman, 209 N.J. 102, 123 (2012).
Most fundamentally, defendant was sentenced in accordance with the plea
agreement. "While the sentence imposed must be a lawful one, the court's
decision to impose a sentence in accordance with the plea agreement should be
given great respect, since a 'presumption of reasonableness . . . attaches to
criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J.
Super. 61, 71 (App. Div. 1996) (alteration in original) (quoting State v. Sainz,
107 N.J. 283, 294 (1987)). Thus, defendant "cannot legitimately complain that
the sentence was unexpected or that he received a sentence other than that for
which he explicitly negotiated." State v. Thomas, 392 N.J. Super 169, 186 (App.
Div. 2007) (quoting State v. Soto, 385 N.J. Super 247, 255 (App. Div. 2006)).
Moreover, defendant received a sentence significantly lower than the thirty-year
maximum for aggravated manslaughter. See N.J.S.A. 2C:11-4(c).
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Defendant does not challenge the court's evaluation of aggravating and
mitigating factors. His sentence is not manifestly excessive or unduly punitive
and does not shock the judicial conscience. Accordingly, we discern no abuse
of discretion or other basis to order resentencing.
III.
Lastly, we address defendant's argument that trial counsel was ineffective
by failing to present evidence in favor of the Miller/Zuber factors and of
defendant's rehabilitation while he was detained in jail before sentencing. He
contends that trial counsel should have presented his biopsychosocial
assessment and other evidence of his rehabilitation to the trial court.
Generally, a claim of ineffective assistance of counsel cannot be raised on
direct appeal. Our Supreme Court has expressed a "general policy against
entertaining ineffective-assistance-of-counsel claims on direct appeal because
such claims involve allegations and evidence that lie outside the trial record. "
State v. Preciose, 129 N.J. 451, 460 (1992). Only in the rare instances "when
the trial itself provides an adequately developed record upon which to evaluate
defendant's claims," should an appellate court consider the issue of ineffective
assistance of counsel on direct appeal. State v. Castagna, 187 N.J. 293, 313
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(2006). Here, there is no developed record on this issue. We therefore decline
to address the ineffective assistance of counsel issue.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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