State of New Jersey v. Rafael A. Vasquez ( 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NOT FOR PUBLICATION WITHOUT THE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-3085-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAFAEL A. VASQUEZ, a/k/a
RAFAEL A. VAZQUEZ,
Defendant-Appellant.
____________________________
Submitted January 18, 2024 – Decided February 2, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment Nos. 15-04-0046
and 15-04-0047.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Kaili Elizabeth Matthews, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Rafael A. Vasquez appeals from an April 28, 2022 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant contends his trial counsel provided ineffective assistance by
failing to raise certain mitigating factors during the sentencing hearing. We
affirm the court's denial of defendant's PCR petition.
On April 22, 2014, Paramus Police Detective Dmitriy Mazur1 was
working undercover on a narcotics investigation. Mazur arranged to meet with
defendant, as well as Melvin Guzman and Patrick Morel, in a parking lot under
the pretense of purchasing an ounce of marijuana from Guzman. Shortly after
Mazur arrived, defendant approached the unmarked police vehicle, opened the
driver's side door where the detective was sitting, pointed a semi-automatic
handgun at Mazur's ribs and demanded money.
Backup officers arrived and a struggle ensued. Defendant fired multiple
shots at Mazur, shooting him in the hip and ankle, before fleeing the scene while
pointing the handgun in the officers' direction. An officer shot defendant and
he was placed under arrest.
1
The record is inconsistent as to the spelling of Detective Mazur's name. We
use the spelling set forth in indictment No. 15-04-0046-S.
A-3085-21
2
Defendant, Guzman, and Morel all admitted they went to the parking lot
with the intention of robbing Mazur. Defendant was the "muscle" behind the
robbery because the suspects agreed he was "intimidating." In defendant's initial
statement to police, he stated the gun discharged while he was physically
struggling with Mazur over control of the weapon.
Under indictment No. 15-04-0046-S, defendant was charged with first-
degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1(a)(1); second-
degree conspiracy, N.J.S.A. 2C:5-2; first-degree attempted robbery, N.J.S.A.
2C:15-1(a)(1), -1(a)(2), -1(b) and N.J.S.A. 2C:2-6; second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6; second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4(a)(1)
and N.J.S.A. 2C:2-6; second-degree possession of a weapon during the
commission of a controlled dangerous substance (CDS) offense, N.J.S.A. 2C:39-
4.1 and N.J.S.A. 2C:2-6; second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) and N.J.S.A. 2C:2-6; third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2) and N.J.S.A. 2C:2-6; and fourth-degree aggravated assault, N.J.S.A.
2C:12-1(b)(4) and N.J.S.A. 2C:2-6. Under indictment No. 15-04-0047-S,
defendant was charged with second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7.
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Defendant's prior criminal history includes eight juvenile petitions, eight
arrests as an adult, and five prior convictions for indictable offenses, including
a conviction for attempted assault. At the time of his April 22, 2014 arrest,
defendant was on parole for aggravated assault and was prohibited from carrying
a weapon.
On March 9, 2016, defendant pled guilty to first-degree attempted murder
and second-degree certain persons not to have weapons. During the plea
allocution, defendant admitted to firing the gun in the direction of the police
officer. Defendant also testified that he was satisfied with counsel's
representation, he had no questions regarding his plea, and he entered into the
plea voluntarily. The trial court stated it was "satisfied that this defendant
certainly had the advice of extremely competent counsel."
At the April 27, 2016 sentencing hearing, defense counsel argued that
defendant's difficult familial situation and upbringing warranted consideration
in the court's decision as to the sentence. The court acknowledged that
defendant "did have a very difficult childhood" and he "lost [his] parents at a
young age and in many ways [was] thrust onto the streets." The court stated it
had "certainly taken [those considerations] into account."
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The court found aggravating factors three (the risk that defendant will
commit another offense); six (the extent of the defendant's prior criminal record
and the seriousness of the offenses of which he has been convicted); and nine
(the need for deterring the defendant and others from violating the law)
applicable. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Although the court
commended defendant for his apology, remorse, and articulated commitment to
change going forward, the court determined it was "unable to find any mitigating
factors" to "significantly rely upon." Therefore, the court determined that "the
aggravating factors prevail . . . "
As a result, the court sentenced defendant consistent with the plea
agreement to a fifteen-year term of imprisonment, pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-degree attempted murder
and a ten-year term of imprisonment with five years of parole ineligibility for
the second-degree weapons charge. The sentences were to run concurrently with
the term he was serving for the parole violation. The court also imposed
applicable fines and penalties and dismissed the remaining charges. Defendant
was awarded jail credit for time served.
Defendant appealed his sentence, arguing that he should have received a
ten-year sentence for the first-degree attempted murder charge because he was
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unaware the undercover officers on the scene were law enforcement, which was
heard on our Sentencing Oral Argument calendar pursuant to Rule 2:9-11. On
April 11, 2018, we affirmed. State v. Vasquez, No. A-0418-17 (App. Div. April
11, 2018).
On August 13, 2020, defendant filed a pro se PCR petition. PCR counsel
was assigned and filed a supplemental brief. Defendant argued that his two trial
attorneys were ineffective because they failed to argue for a sentence one degree
lower or request a sentence at the minimum term for first-degree attempted
murder, and asserted there was sentencing disparity with his co-defendants.
On April 28, 2022, the PCR court held a hearing. Following arguments
that day, the PCR court issued an oral opinion denying defendant's PCR petition.
The PCR court stated that "defendant was represented by two very experienced
[p]ublic [d]efenders" and "trial counsel’s request for a downgrade was not
deficient." Further, the PCR court found defendant only could have received a
lesser sentence if the "[c]ourt was clearly convinced that the mitigating factors
substantially outweighed the aggravating factors and the interest of justice
demanded a reduction in sentence." The PCR court opined that since the
sentencing court found no mitigating factors, "trial counsel cannot be deemed
A-3085-21
6
ineffective for failing to raise losing arguments," and denied defendant's PCR
petition. A memorializing order was entered. This appeal followed.
Defendant appeals, raising only one argument:
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING OR A REMAND ON HIS
CLAIM THAT COUNSEL RENDERED
INEFFECTIVE ASSISTANCE BY FAILING TO
ADVOCATE ADEQUATELY AT SENTENCING.
"[PCR] is New Jersey's analogue to the federal writ of habeas corpus."
State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J.
451, 459 (1992)); see also State v. Afanador, 151 N.J. 41, 49 (1997)
("Ordinarily, PCR enables a defendant to challenge the legality of a sentence or
final judgment of conviction by presenting contentions that could not have been
raised on direct appeal.") (citing State v. McQuaid, 147 N.J. 464, 482-83
(1997)). "The Sixth Amendment of the United States Constitution and Article
I, [P]aragraph 10 of the New Jersey Constitution require that a defendant receive
'the effective assistance of counsel' during a criminal proceeding." State v.
Porter, 216 N.J. 343, 352 (2013) (quoting Strickland v. Washington, 466 U.S.
685-86 (1984)).
A defendant establishes a prima facie claim of ineffective assistance of
counsel by satisfying the standards enunciated in Strickland, 466 U.S. at 687-
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88, and adopted by our State in State v. Fritz, 105 N.J. 42, 58 (1987). Under the
Strickland/Fritz framework, a defendant first must show his attorney's handling
of the matter "fell below an objective standard of reasonableness." Strickland,
466 U.S. at 688. Then, a "defendant must show . . . there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. In seeking PCR under Rule
3:22-2, a defendant must prove counsel was ineffective by a preponderance of
the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012).
When, as in this matter, a PCR court does not conduct an evidentiary
hearing, we review the PCR court's factual findings and legal conclusions de
novo. See State v. Harris, 181 N.J. 391, 421 (2004). An evidentiary hearing is
only required where the PCR petition has a reasonable probability of being
meritorious. State v. Jones, 219 N.J. 298, 311 (2014) (explaining that when
"view[ing] the facts in the light most favorable to the defendant," the court
should hold an evidentiary hearing if "the PCR claim has a reasonable
probability of being meritorious").
Sentencing hearings afford defense counsel the "opportunity to make a
vigorous argument regarding mitigating and other circumstances, hoping to
personalize defendant in order to justify the least severe sentence under the
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8
Criminal Code." State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002).
Counsel owes a duty to the defendant they represent to present "mitigating
evidence in support of a lesser sentence" and failure to honor that obligation
denies a defendant the "constitutional right to the effective assistance of counsel
at sentencing." State v. Hess, 207 N.J. 123, 129 (2011).
Defendant here asserts that his trial counsel was ineffective at the
sentencing hearing by failing to argue certain mitigating factors. Defendant
further contends that because support for this argument is dependent on evidence
outside the record, including testimony from him and his trial counsel, the PCR
court should have afforded him an evidentiary hearing. Defendant specifically
asserts that counsel should have raised mitigating factor eight (defendant's
conduct was the result of circumstances unlikely to recur) and nine (defendant
is unlikely to commit another offense) under N.J.S.A. 2C:44-1(b)(8) and (9).
Defendant also argues his remorsefulness is sufficient support for consideration
of these two factors and he should have been afforded the opportunity to present
additional mitigating evidence at a hearing.
We are not convinced that defendant has presented a prima facie showing
of either prong of the Strickland/Fritz standard. "[I]n order to establish a prima
facie claim, [plaintiff] must do more than make bald assertions that he was
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denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999). Defendant has failed to show trial counsel was
deficient or there would have been a different outcome at the sentencing hearing
even if trial counsel had asserted the mitigating factors he now seeks. We also
find that defendant's PCR petition did not have "a reasonable probability of
being meritorious" and, therefore, no evidentiary hearing was necessary. Jones,
219 N.J. at 311.
Defendant posits in a conclusionary fashion he would have received a
lesser sentence if trial counsel had raised certain mitigating factors. This
assertion is belied by counsel's arguments made during the sentencing hearing.
Counsel argued that defendant's criminal history was situational and, therefore,
in some respects not of his own doing. Defendant's own testimony was proffered
as to his remorse. The record at the sentencing hearing establishes that the judge
commended defendant on his asserted commitment to change the trajectory of
his life. Despite acknowledging defendant's articulated remorse and intention
to change, the judge did not find defendant's proclamations to be a mitigating
factor in light of defendant's criminal history which evidenced a likelihood of
recurrent criminal behavior.
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Defendant could have been given a lesser sentence only if the court was
"clearly convinced . . . the mitigating factors substantially outweigh[ed] the
aggravating factors and . . . the interest of justice demand[ed] a reduction in
sentence." N.J.S.A. 2C:44-1(f)(2). At sentencing, the court substantively
addressed the proofs on mitigating factors eight and nine, and found there were
no mitigating factors that outweighed the applicable aggravating factors.
In the alternative, defendant asserts that his PCR petition must be
remanded because the PCR court did not comport with Rules 3:22-11 and 1:7-
4(a) by setting forth all conclusions of fact and law underpinning its decision.
We disagree. The PCR court set forth its findings of fact and conclusions of law
pursuant to Rule 1:7-4 on the record on April 28, 2022. The PCR court
considered each of defendant's arguments and specifically rejected the assertion
trial counsel was deficient under Strickland/Fritz because "trial counsel cannot
be deemed ineffective for failing to raise losing arguments."
Affirmed.
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