State of New Jersey v. Wilfredo Sanchez ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0846-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILFREDO SANCHEZ, a/k/a
WILFREDO SAGASTUME,
Defendant-Appellant.
_________________________
Submitted December 6, 2023 – Decided January 12, 2024
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 11-11-1892.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief; John J. Scaliti, Legal
Assistant, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Wilfredo Sanchez appeals from a March 20, 2020 order
denying his first petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant raised various claims of ineffective assistance of his trial,
appellate, and PCR counsel. For the reasons that follow, we affirm.
I.
The parties are familiar with the procedural history and facts of this case,
and therefore, they will not be repeated in detail here. 1 A Bergen County grand
jury charged defendant in nine counts of a ten count indictment with first-degree
murder, 2C:2-6 and 2C:11-3(a)(1) and (2); second-degree desecration of human
remains, N.J.S.A. 2C:2-6 and 2C:21-1(a); second-degree disturbing, moving, or
concealing human remains, N.J.S.A. 2C:2-6 and 2C:22-1(a); two counts of
possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:2 -6 and
2C:39-4(d); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-
5(d); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(1) and -3(b)(4). A jury found defendant guilty on all counts.
1
The chronology is set forth in this court's unpublished decision affirming
defendant's conviction and sentence. State v. Sanchez, No. A-5951-13 (App.
Div. Aug. 19, 2016). We incorporate, by reference, the facts stated in our prior
opinion.
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2
After merging certain counts, the trial court sentenced defendant to life
imprisonment on the first-degree murder charge subject to the No Early Release
Act, N.J.S.A. 2C:43-7.21; a consecutive ten-year custodial term on the second-
degree desecration of human remains count; a concurrent ten-year custodial term
on the second-degree disturbing human remains count; concurrent five-year
custodial terms on the two third-degree counts of possession of a weapon for an
unlawful purpose; a consecutive five-year custodial term on one count of third-
degree hindering apprehension; and a concurrent five-year custodial term on the
other third-degree count of hindering apprehension.
Defendant and co-defendant Pedro Garcia brutally murdered and
dismembered the victim. Detectives obtained recorded surveillance videos from
two businesses and a home near the victim's apartment depicting defendant and
Garcia carrying garbage bags during the early morning of the homicide.
Defendant and Garcia were tried separately.
Garcia testified against defendant at trial and placed him at the crime
scene. Garcia explained how defendant grabbed the victim, pulled him,
repeatedly hit him, and knocked him to the floor. The victim bled from his
mouth and back. According to Garcia, defendant then grabbed the victim by the
hand, escorted him into the bathroom, and started running water, which the
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victim said was too hot. An argument ensued, Garcia became enraged and cut
the victim's neck with a knife from the kitchen apartment. Garcia gave
defendant the knife. The victim told defendant to call an ambulance, but instead,
defendant cut the victim in the stomach with a different knife retrieved from the
kitchen.
As the victim begged for his life, defendant and Garcia decided to "finish
him off." Garcia stabbed the victim in the neck a second time. Defendant and
Garcia proceeded to dismember the victim's body, placed the dismembered body
parts into separate garbage bags, and dumped them at a church, a construction
site, and a hardware store. The State presented considerable forensic and
circumstantial evidence corroborating defendant's participation in the homicide.
Defendant, represented by counsel, filed a petition for PCR in 2019,
claiming he was denied the right to effective assistance of counsel under the
Sixth Amendment of the United States Constitution, and Article I, Paragraph 7
of the New Jersey Constitution. In his first PCR petition, defendant alleged he
received ineffective assistance of trial counsel based on the following errors:
(1) failure to review discovery and discuss the case with defendant; (2) failure
to investigate the facts of the case, interview, and call witnesses to testify at
trial; and (3) failure to raise an intoxication defense. Defendant also claimed his
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appellate counsel was ineffective for failing to raise "all applicable legal
challenges on direct appeal."
On September 2, 2019, a second PCR counsel filed a letter brief in support
of defendant's first PCR petition asserting trial counsel was ineffective in not
adequately reviewing discovery with defendant, not discussing possible trial
defenses, not discussing possible trial strategy that could have impacted his
decision on whether or not to testify, and failing to investigate defense
witnesses.
PCR counsel further contended that trial counsel was ineffective in not
interviewing and calling four "character" witnesses: Sonia Cruz, Gladys
Carbonel, Gloria Gomez, and Melissa Gonzalez to testify at trial. The
prosecution's theory was that defendant and the victim were in a homosexual
relationship. These individuals submitted similar statements attesting to
knowing defendant for many years, being familiar with his personal life, and his
"kind, polite, and non-confrontational" character. The character witnesses also
stated defendant told them he was "friendly" with the victim and Garcia. None
of the witnesses believed defendant was a gay man. According to defendant,
Gonzalez could have testified the victim told her several times prior to his death
that he was involved in a romantic relationship with Garcia and that Garcia was
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physically abusive. Gonzalez also stated the victim showed her a "purple bruise"
he sustained when Garcia assaulted him one or two days earlier.
PCR counsel averred that such testimony would have shown that Garcia
was involved in a romantic relationship with the victim, which gave rise to the
homicide, not a relationship between defendant and the victim. PCR counsel
further posited that Gonzalez's testimony would have supported defendant's
position that Garcia threatened defendant and his family if he did not help Garcia
dismember the victim's body after the murder.
On January 10, 2020, the PCR court heard oral argument on defendant's
PCR petition and reserved decision. On March 20, 2020, the PCR court issued
an order denying defendant's PCR application without a hearing, accompanied
by a thorough written opinion. The PCR court found defendant's PCR petition
was timely filed and not procedurally barred under Rule 3:22-12(a)(1). The PCR
court noted defendant "did not expressly state in his verified petition that he
would have elected to testify at trial" and "did not expressly allege [trial counsel]
failed to call character witnesses." However, the PCR court addressed these
specific allegations as briefed by superseding PCR counsel.2
2
The PCR court highlighted that defendant's PCR petition alleged trial counsel
did not discuss a defense of intoxication, but PCR counsel did not pursue it, and
the PCR court deemed that claim abandoned.
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Regarding the witnesses, the PCR court found defendant's arguments were
contravened by the record. The PCR court noted only three people were present
in the "studio" apartment when the crimes were committed—defendant, Garcia,
and the deceased victim. Therefore, the PCR court reasoned that there were no
defense witnesses who could have "personal knowledge" as to what occurred at
the crime scene. The PCR court determined Gonzalez could not have testified
the victim told her that he was in a romantic relationship with Garcia and Garcia
was "physically abusive" under N.J.R.E. 803(c)(2), the "Excited Utterance" rule.
The PCR court reasoned that Rule 803(c)(2) is an exception to the hearsay
rule and allows a statement to be admissible if it relates " to a startling event . . .
made while the declarant was under the stress of excitement caused by the event
. . . without the opportunity to deliberate or fabricate." Since the purported
statements were made by the victim to Gonzalez on different dates when he was
not under duress, the PCR court determined her testimony would have been
deemed inadmissible under Rule 803(c)(2).
Regarding the "purple bruise," the PCR court explained it would take a
day or two for the skin to turn that color following an assault. Thus, the PCR
court found when the victim made his statement about the purple bruise to
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Gonzalez, he was no longer "under the stress of the event," would have had time
to deliberate, and "this testimony would not have been admissible."
The PCR court emphasized a State witness, Nelly Torres, one of the three
tenants living in the same apartment building where the victim lived, testified
she "actually saw" Garcia physically abuse the victim, and so the jury heard
evidence similar to what defendant now sought to introduce. The PCR court
noted Torres testified that the victim and Garcia were in a relationship.
Therefore, the PCR court found Gonzalez's contemplated testimony that the
victim told her he was romantically involved with Garcia would have been
"cumulative," and defendant did not establish "a reasonable probability" the
outcome of the trial would have been different had she testified. The PCR court
also noted Dora Gonzalez, the victim's sister, testified she spoke to her brother
daily, and he told her defendant was his partner, and that Sergeant Sean Mackay
testified Garcia "admitted to him that he was the victim's boyfriend."
The PCR court determined the four character-witness statements attesting
to defendant being a homosexual had no bearing on the outcome of the case
because the trial was about "murder and accomplice liability" and not "sexual
preference." Thus, the PCR court rejected defendant's argument that
establishing he was not a homosexual would have any bearing on the outcome
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of the case. The PCR court explained that the evidence clearly showed trial
counsel and defendant discussed his right to testify on the record, and the trial
court afforded defendant a "brief recess" to discuss the issue further.
In addition, the PCR court noted defendant had a three-day weekend to
"reconsider whether he would testify or not." The PCR court emphasized that
defendant's PCR petition did not represent that he would have testified or how
his own testimony could be used "to create a trial strategy." The PCR court
concluded defendant failed to make a prima facie showing under the first and
second Strickland3 prongs.
On August 20, 2021, defendant filed a second PCR petition. On October
28, 2021, the PCR court conducted a hearing. Defendant was present,
represented by new counsel, and had the aid of a Spanish interpreter. Under
oath, defendant testified he never received the PCR court's March 20, 2020 order
and decision denying his first PCR and therefore, never appealed from that
decision. The PCR court accepted the excuse and provided counsel the decision
and order, advising defendant could appeal from the order. The second PCR
petition was denied without prejudice subject to defendant filing an appeal from
the March 20, 2020 order, which is the matter under review.
3
Strickland v. Washington, 466 U.S. 668, 687 (1984).
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On appeal, defendant raises the following points for our consideration:
POINT I
THE PCR COURT ERRED IN NOT GRANTING
DEFENDANT AN EVIDENTIARY HEARING ON
HIS CLAIM THAT, DUE TO INEFFECTIVE
ASSISTANCE OF COUNSEL, HE WAS DENIED
THE RIGHT TO TESTIFY AT TRIAL.
POINT II
THE ORDER DENYING DEFENDANT'S FIRST PCR
PETITION MUST BE REVERSED AND
REMANDED BECAUSE THE PCR COURT DID
NOT CONDUCT ORAL ARGUMENT AND FAILED
TO STATE ANY REASON FOR NOT DOING SO.
(Not Raised Below.)
POINT III
THE PCR COURT ERRED IN FAILING TO
CONSIDER DEFENDANT'S CLAIM THAT HE WAS
DENIED THE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE OF
COUNSEL'S FAILURE TO RAISE THE
INTOXICATION DEFENSE.
POINT IV
THE CUMULATIVE EFFECT OF THE REMAINING
ARGUMENTS DESERVE EX[PL]ORATION AT AN
EVIDENTIARY HEARING.
In his self-authored supplemental brief, defendant raises the following two
points:
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POINT I
THE PCR COURT ERRED IN NOT CONDUCTING
AN ORAL ARGUMENT IN WHICH DEFENDANT
COULD ARGUE HIS LEGAL ISSUES SUCH AS
INEFFECTIVE ASSISTANCE OF TRIAL AND
DIRECT APPEAL COUNSELS (sic).
POINT II
THE TRIAL COURT ERRED WHEN IT DID NOT
SUA SPONTE CHARGE THE JURY WITH LESSER-
INCLUDED OFFENSES BECAUSE THERE WAS
MORE THAN AMPLE EVIDENCE TO SUPPORT
THAT DEFENDANT DID NOT KILL [THE
VICTIM].
We disagree with defendant's contentions and affirm.
II.
In the absence of an evidentiary hearing, we review de novo the factual
inferences drawn from the record by the PCR judge as well as the judge's legal
conclusions. State v. Harris, 181 N.J. 391, 421 (2004); see also State v.
Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div. 2020). We review a PCR
judge's decision to deny a defendant's request for an evidentiary hearing under
an abuse of discretion standard. See State v. L.G.- M., 462 N.J. Super. 357, 365
(App. Div. 2020).
A petitioner must establish entitlement to "PCR by a preponderance of the
evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014).
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Additionally, a petitioner is not automatically entitled to an evidentiary hearing
by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999).
To succeed on a claim of ineffective assistance of counsel, a defendant
must satisfy both prongs of the test set forth in Strickland, as adopted by State
v. Fritz, 105 N.J. 42, 58 (1987), by a preponderance of the evidence. "First, the
defendant must show that counsel's performance was deficient." Strickland, 466
U.S. at 687. This requires demonstrating that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Ibid. The United States Constitution requires "reasonably
effective assistance." Ibid. An attorney's performance will not be deemed
deficient if counsel acted "within the range of competence demanded of
attorneys in criminal cases." Ibid. (quoting McMann v. Richardson, 397 U.S.
759, 771 (1970)). Therefore, "[w]hen a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness." Id. at 687-
88.
When assessing the first Strickland prong, "[j]udicial scrutiny of counsel's
performance must be highly deferential," and "every effort [must] be made to
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eliminate the distorting effects of hindsight." Id. at 689. "Merely because a trial
strategy fails does not mean that counsel was ineffective." State v. Bey, 161
N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance," and "the defendant must overcome the presumption that, under the
circumstances, the challenged action [by counsel] 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Further, the court must not focus on the defendant's
dissatisfaction with counsel's "exercise of judgment during the trial . . . . while
ignoring the totality of counsel's performance in the context of the State's
evidence of [the] defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006).
Under the second prong of the Strickland test, the defendant must show
"the deficient performance prejudiced the defense." 466 U.S. at 687. This
means "counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Ibid. It is insufficient for the defendant to show
the errors "had some conceivable effect on the outcome." Id. at 693. Ultimately,
"[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if [it] had no effect on the
judgment." Id. at 691.
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A.
Here, defendant contends his trial counsel was deficient in not properly
advising him as to his right to testify. Defendant avers the trial court should not
have focused on whether he and his trial counsel discussed the right to testify,
but rather whether defendant understood his right. Defendant's claim is
unsupported by the record.
During the trial, the judge asked defendant if he had the opportunity to
speak with his attorney about whether he was going to testify, and defendant
responded, "yes." The trial judge then proceeded to ask defendant whether it
was his decision to testify or not to testify after reviewing all of the discovery
and applicable law, and defendant responded, "not to testify." The trial judge
then proceeded to confirm that defendant's decision was voluntary, and he
responded, "yes." Defendant was also questioned by the trial judge if he was
satisfied with his trial counsel's explanation of the different consequences and
implications of not testifying and defendant responded, "yes."
Defendant's claim is belied by the record, which clearly established trial
counsel and defendant discussed his right to testify. Moreover, the trial judge
allowed defendant a "brief recess" to discuss the issue further, and the PCR court
correctly pointed out defendant had a three-day weekend to reconsider his
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decision on whether to testify or not. We are unpersuaded by defendant's
argument and are convinced the PCR court correctly determined defendant
failed to sustain his burden on this issue under both prongs of the Strickland
standard.
Because trial counsel discussed defendant's right to testify with him, there
was no deficient performance. And, defendant did not state he wanted to testify
in his petition. Garcia testified as to defendant's actions in killing and
dismembering the victim. Moreover, there was overwhelming evidence of
defendant's guilt including the surveillance video of defendant carrying garbage
bags out of the apartment, which contained the victim's body parts.
Consequently, the PCR court did not err in denying defendant PCR on this claim.
B.
Next, defendant argues the PCR court erred by not granting oral argument
on his petition and the only hearing conducted was on October 28, 2021.
Defendant is mistaken. On January 10, 2020, the PCR court heard oral argument
on defendant's PCR petition during which PCR counsel presented argument.
C.
Next, defendant contends his PCR counsel was ineffective for not raising
an intoxication defense in his supplemental PCR brief, which was raised in
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defendant's pro se petition, causing the PCR court to deem the claim abandoned.
Defendant is correct that he raised the intoxication issue in his pro se PCR
petition, that his PCR counsel failed to argue the defense in his supplemental
pro se brief, and the PCR court failed to expressly address this argument in
denying PCR because the PCR court considered the claim abandoned.
The PCR court should have made findings of fact and conclusions of law
with respect to the intoxication defense because the issue was raised before it.
R. 1:7-4(a). However, in reviewing defendant's claims under the de novo
standard of review, Harris, 181 N.J. at 419-20, and in light of the record, it is
clear the intoxication claim is without merit, and it fails to establish a deficiency
that would satisfy either of Strickland's two prongs.
Regarding the first Strickland prong, defendant has failed to show that his
trial counsel's decision not to pursue an intoxication defense and his PCR
counsel's failure to address this issue in his supplemental brief fell below the
standard of a reasonably competent criminal defense attorneys. To successfully
invoke the intoxication defense, an accused must show he or she is so intoxicated
that he or she did not have the intent to commit an offense. State v. Cameron,
104 N.J. 42, 54 (1986).
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Defendant has failed to present prima facie evidence of a viable
intoxication defense. Thus, trial and PCR counsel were not ineffective for
failing to raise the defense. See State v. Worlock, 117 N.J. 596, 625 (1990)
(holding "the failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel").
Defendant also failed to satisfy the second Strickland prong because he
did not offer any argument in either his PCR petition or in his merits brief on
appeal, as to how the purported error would have changed the outcome of the
trial. Defendant only stated the contention as an error.
"The defendant 'must allege facts sufficient to demonstrate counsel's
alleged substandard performance.'" State v. Jones, 219 N.J. 298, 311-12 (2014)
(quoting State v. Porter, 216 N.J. 343, 355 (2013)). Defendant provided no facts
or certification to support his claim. See Cummings, 321 N.J. Super. at 170(explaining a PCR petition claim of ineffective assistance of counsel must be
"supported by affidavits or certifications based upon the personal knowledge of
the affidavit or the person making the certification"). Defendant's bare assertion
does not satisfy the existing standard required by Strickland's second prong.
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D.
Defendant argues the cumulative effect of trial counsel's ineffectiveness
in failing to call certain witnesses to testify at trial; failure to review discovery
or discuss the facts of the case with him; and failure to discuss the intoxication
defense warrants an evidentiary hearing. Defendant also maintains appellate
counsel was ineffective and his interpreters' services were deficient. We reject
these arguments.
As discussed, defendant has not established ineffective assistance of either
trial or appellate counsel. The representation was not deficient, and defendant
cannot demonstrate the outcome of the proceeding would have been any
different.
The State's case was strong: the victim knew defendant and Garcia; the
murder took place in the victim's apartment; Garcia testified against defendant;
and the surveillance video depicted defendant carrying garbage bags out of the
apartment.
Defendant failed to carry his burden of affirmatively proving prejudice.
Therefore, the cumulative error doctrine is of no moment. See State v. Cotto,
471 N.J. Super. 489, 547 (App. Div. 2022) (holding "even when an individual
error or series of errors does not rise to reversible error, when considered in
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combination, their cumulative effect can cost sufficient doubt on a verdict to
require reversal").
Defendant's argument that appellate counsel was ineffective is unavailing
because defendant has not articulated what arguments should have been briefed
on appeal, but were not. Therefore, defendant cannot sustain this assertion.
E.
In his pro se supplemental brief, defendant argues the trial judge erred
when she did not sua sponte charge the jury with lesser included offenses
because he claims Garcia killed the victim. Defendant also asserts that his trial
counsel was ineffective for not asking the trial judge to include lesser-included
charges on the verdict sheet because the jury had no other option but to find
him guilty of first-degree murder.
It is well established that PCR proceedings are not an opportunity to r e-
litigate claims already decided on the merits in prior proceedings. State v.
McQuaid, 147 N.J. 464, 483 (1997). Therefore, "[a] prior adjudication on the
merits ordinarily constitutes a procedural bar to the reassertion of the same
ground as a basis for post-conviction review." Preciose, 129 N.J. at 476.
Similarly, Rule 3:22-5 also states, "[a] prior adjudication upon the merits of any
ground for relief is conclusive whether made in the proceedings resulting in the
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conviction or in any post-conviction proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any appeal taken from such proceedings."
In our opinion on the direct appeal, we addressed defendant's arguments
as to whether the trial judge erred by omitting to instruct the jury on passion-
provocation manslaughter, reckless manslaughter, and aggravated assault. We
found the record lacked any evidence to support a charge on lesser-included
offenses. Sanchez, slip op. at 7-15. Since defendant's claim does not fall under
the limited purview of Rule 3:22-5, and the issue was raised and adjudicated on
his direct appeal, he is procedurally barred from re-litigating this claim.
F.
Finally, a defendant bears the burden of establishing a prima facie claim
prior to the grant of an evidentiary hearing. State v. Gaitan, 209 N.J. 339, 350
(2012). A defendant is entitled to an evidentiary hearing if the facts viewed "in
the light most favorable to defendant," would entitle him to PCR. State v.
Marshall, 148 N.J. 89, 158 (1997) (quoting State v. Preciose, 129 N.J. 451, 462-
63 (1992)); R. 3:22-10(b). "If, with the facts so viewed, the PCR claim has a
reasonable probability of being meritorious, then the defendant should
ordinarily receive an evidentiary hearing in order to prove his entitlement to
relief." Jones, 219 N.J. at 311. A defendant must "do more than make bald
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assertions that he was denied the effective assistance of counsel" to establish a
prima facie claim entitling him to an evidentiary hearing. Cummings, 321 N.J.
Super. at 170. On this record, defendant has been unable to demonstrate a
hearing is warranted.
Defendant's remaining arguments lack sufficient merit to warrant any
further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed.
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