State of New Jersey v. Wilber Mejia-Hernandez ( 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NOT FOR PUBLICATION WITHOUT THE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-3745-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILBER MEJIA-HERNANDEZ,
a/k/a WILBER HERNANDEZ,
WILBER O. MEJIA-HERNANDEZ,
WILBER O. MEJIA HERNANDEZ,
WILBER MEJIA HERNANDEZ,
and WILBER O. HERNANDEZ,
Defendant-Appellant.
_____________________________
Submitted October 9, 2024 – Decided November 6, 2024
Before Judges Gooden Brown and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 19-02-0189.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Deepa S. Y. Jacobs, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Wilber Mejia-Hernandez appeals from the June 12, 2023, Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
The procedural history and underlying facts involved in this matter are set
forth at length in our prior unpublished opinion on defendant's direct appeal, in
which we affirmed his 2019 convictions and sentence. See State v. Mejia-
Hernandez, No. A-1022-19 (App. Div. Aug. 9, 2021), certif. denied, 248 N.J.
554 (2021).
We briefly reiterate the salient facts pertinent to this appeal:
Following a jury trial, defendant was acquitted of
attempted murder, but convicted of aggravated assault,
weapons[-]possession[-]related offenses, and hindering
apprehension or prosecution. He was sentenced to an
aggregate term of fifteen years' imprisonment with a
nine-and-one-half-year period of parole ineligibility
pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
The convictions stemmed from defendant's
involvement in a shooting at a gentlemen's club. After
defendant and two co-workers, co[-]defendants Jose
Taveras and Walter Siguencia, were ejected from the
club due to an altercation with the staff, they plotted
their revenge, switched vehicles, and retrieved a
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firearm from Taveras'[s] home. They then returned to
the club where Taveras fired the gun multiple times into
the building, shooting one of the bouncers in the back.
Thereafter, Taveras secreted the gun at their place of
employment. Although defendant was not the actual
shooter, he instigated the conflict at the club, suggested
obtaining a gun, served as the driver of the getaway car
after the shooting, and assisted in concealing the gun.
[Id. at 1-2.]
During the trial, Taveras testified for the State and implicated defendant
who elected not to testify on his own behalf. "During his testimony, Taveras
acknowledged pleading guilty to aggravated assault and unlawful possession of
a weapon in connection with the incident in exchange for a recommended
maximum aggregate sentence of twelve years' imprisonment. Taveras also
agreed to testify against his co[-]defendants under the terms of his plea
agreement." Id. at 5 n.3.
After the trial, Taveras submitted a sworn affidavit dated December 22,
2020, stating:
I was arrested with my co-defendant[s] . . . on July 16,
2016. I was interviewed by Detective [Michael]
Guzman. I was under the influence of marijuana and
very nervous[] and I lied about how everything . . . took
place that night concerning my [role] and the [role] of
my co-defendan[ts]. Also[,] I lied in trial concerning
[defendant]. Before the trial[,] I spoke to the
[prosecutor,] . . . and she promised me if I testif[ied]
against [defendant] that I would get [seven] with 85%[.]
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. . . [F]or that reason[,] I lied and said [defendant] told
me to take him to the Bronx, NY[,] to get a gun which
is not true. I left [the Players] Club and went to my
apartment to get the gun and then went back to the
Player[s] Club and that[ is] when the shooting
happened.
I was drunk the night of the[ incident] and I take
full responsibility for my actions. I was not
influence[d] by anybody to write this confession[.] I
feel bad that I lied and my conscience is bothering me
and I just want to come clean and tell the truth.
On February 22, 2022, defendant filed a timely PCR petition, which was
later supplemented by assigned counsel. In the petition, defendant raised
various claims of ineffective assistance of counsel (IAC) by his trial attorney.
Among other things, defendant asserted his trial counsel was ineffective by
improperly advising him about his right to testify and pressuring him not to
testify. He also alleged trial counsel should have filed a motion for a new trial
based on Taveras's post-trial affidavit.
Following oral argument, the PCR judge rejected each of defendant's
claims in a comprehensive twenty-eight-page written decision. In his decision,
the judge reviewed the case, applied the governing legal principles, and
concluded defendant failed to establish a prima facie claim of IAC. The judge
also determined defendant was not entitled to an evidentiary hearing. The judge
entered a memorializing order, and this appeal followed.
A-3745-22
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On appeal, defendant raises the following point for our consideration:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Abridged Defendant's Constitutional
Right to Testify.
B. Trial Counsel Failed to Move for a New Trial Based
Upon the Newly Discovered Evidence of Jose
Taveras's Recantation.
We begin by setting out some guideposts that inform our review. "We
review the legal conclusions of a PCR judge de novo." State v. Reevey, 417
N.J. Super. 134, 146 (App. Div. 2010). "[W]e review under the abuse of
discretion standard the PCR court's determination to proceed without an
evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013). "If the court perceives that holding an evidentiary hearing will not aid
the court's analysis of whether the defendant is entitled to [PCR], . . . then an
evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158
(1997) (citation omitted). "[W]here . . . no evidentiary hearing was conducted,"
as here, "we may review the factual inferences the [trial] court has drawn from
the documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294
(App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 421 (2004)).
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An evidentiary hearing is only required when (1) a defendant establishes
"a prima facie case in support of [PCR]," (2) the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)); see R. 3:22-10(e)(2)
(providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's
allegations are too vague, conclusory or speculative"). "To establish a prima
facie case, [a] defendant must demonstrate a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits." R. 3:22-10(b).
To establish a prima facie IAC claim, a defendant must demonstrate "by
a preponderance of the credible evidence," State v. Echols, 199 N.J. 344, 357
(2009), that the performance of defendant's attorney fell below the objective
standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668,
687-88 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that
the outcome would have been different without the purported deficient
performance. Stated differently, a defendant must show that: (1) counsel's
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performance was deficient; and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.
To satisfy the first prong, a defendant must "show[] that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and "that counsel's representation fell
below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.
"[I]n making the evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689. As such, a defendant "must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
To satisfy the prejudice prong, "[t]he error committed must be so serious
as to undermine the court's confidence in the jury's verdict or result reached."
State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694).
This prong generally requires that a defendant establish a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694.
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Failure to meet either prong of the two-pronged Strickland/Fritz test
results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280
(2012) (citing Echols, 199 N.J. at 358). That said, "courts are permitted leeway
to choose to examine first whether a defendant has been prejudiced, and if not,
to dismiss the claim without determining whether counsel's performance was
constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation
omitted) (citing Strickland, 466 U.S. at 697).
Applying these principles, we reject defendant's contentions that he
received IAC substantially for the reasons stated in the judge's thoughtful
written decision. In rejecting defendant's IAC claim in connection with his
election not to testify at trial, the judge explained:
First, . . . defendant argues that trial counsel
rendered [IAC] because he failed to prepare him to
testify at trial, failed to explain to him what would
happen if he did testify, failed to explain to . . .
defendant that the decision to testify or to remain silent
was his alone to make, and that trial counsel pressured
him into not testifying at trial. However, the record is
devoid of specific facts indicating that trial counsel's
performance amounted to a constitutional violation.
Specifically, there are no facts outside the trial record
that support . . . defendant's claims that he was denied
effective assistance of counsel. The State correctly
points out that during trial, the [c]ourt asked . . .
defendant if he had the opportunity to speak with his
attorney about whether he would testify at trial, as well
as whether . . . defendant had enough time to speak with
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his attorney to which . . . defendant stated he did. The
State also correctly points out that . . . defendant was
extensively questioned about his decision not to testify,
and he made the final decision.
The [c]ourt agrees with the State that . . .
defendant was given enough time to speak with his
attorney and decide whether he would testify at trial.
The court properly questioned . . . defendant about his
decision not to testify. The court agrees that . . .
defendant's decision not to testify at trial was a strategic
decision made by trial counsel and . . . defendant
himself.
[(Citations omitted).]
"The decision of a defendant in a criminal case as to whether or not to
testify rests ultimately with [the] defendant and is an important strategic or
tactical decision to be made by a defendant with the advi[c]e of . . . counsel."
State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988). We acknowledge
that "it is the responsibility of a defendant's counsel, not the trial court, to advise
[the] defendant on whether or not to testify and to explain the tactical advantages
or disadvantages of doing so or not doing so." State v. Savage, 120 N.J. 594,
630-31 (1990) (quoting Bogus, 223 N.J. Super. at 423). However, "[t]o ensure
that counsel meets that obligation, it may be the better practice for a trial court
to inquire of counsel whether [counsel] had advised a defendant" of the right to
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testify. Id. at 631. "Indeed, counsel's failure to do so will give rise to a claim"
of IAC. Ibid.
As the judge recounted, defendant was extensively questioned on the
record under oath about his decision not to testify. Defendant was asked whether
he had consulted with his attorney in making his decision, whether he was
advised of the consequences of his decision, and whether he understood that the
decision was his to make. Defendant responded affirmatively to the questions.
See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open
court carry a strong presumption of verity."). Ultimately, by his own admission,
defendant knowingly, voluntarily, and intelligently elected not to testify without
threats, coercion, or pressure from anyone. Because the record belies
defendant's claims to the contrary, we are satisfied defendant failed to show
constitutionally deficient performance on the part of his attorney to establish the
first prong of the Strickland/Fritz test. Indeed, defendant's election not to testify
"was a tactical decision and defendant must bear the consequences of it." Bogus,
223 N.J. Super. at 423.
Turning to defendant's claim that his attorney was ineffective by not filing
a motion for a new trial based on newly discovered evidence, namely, Taveras's
post-trial affidavit, the judge reasoned that defendant's allegation that "Taveras
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was intoxicated during his interviews with the State is contradicted by evidence
that . . . Taveras was sober and coherent during his interviews." The judge
expounded:
The [c]ourt agrees with the State that there was no
indication that . . . Taveras had any access to drugs or
alcohol or that he was under the influence [during his
interviews with the State]. The court further agrees
with the State that at the time . . . Taveras testified
before the court, he was coherent and sober. Therefore,
there was no basis for trial counsel to move for a new
trial.
In his rationale, the judge implicitly rejected the believability of Taveras's
recantation.
"It is not [IAC] for defense counsel not to file a meritless motion[.]" State
v. O'Neal, 190 N.J. 601, 619 (2007). New Jersey courts follow the Carter1 test
to determine whether a motion for a new trial on the basis of newly discovered
evidence is meritorious:
Evidence is newly discovered and sufficient to warrant
the grant of a new trial when it is "(1) material to the
issue and not merely cumulative or impeaching or
contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and
(3) of the sort that would probably change the jury's
verdict if a new trial were granted."
1
State v. Carter, 85 N.J. 300 (1981).
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[State v. Nash, 212 N.J. 518, 549 (2013) (quoting
Carter, 85 N.J. at 314).]
"The absence of any one of these elements warrants denial of the motion." State
v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008).
"[R]ecantation testimony" is "generally regarded as 'suspect and
untrustworthy.'" State v. Ways, 180 N.J. 171, 196-97 (2004) (quoting State v.
Carter, 69 N.J. 420, 427 (1976)). "Consequently, the burden of proof rests on
those presenting such testimony to establish that it is probably true and the trial
testimony probably false." Carter, 69 N.J. at 427. The test is whether the
recantation testimony "casts serious doubt upon the truth of the testimony given
at the trial and whether, if believable, the factual recital of the recantation so
seriously impugns the entire trial evidence as to give rise to the conclusion that
there resulted a possible miscarriage of justice." State v. Puchalski, 45 N.J. 97,
107-08 (1965).
We have remanded cases for an evidentiary hearing where an affidavit
actually exculpates the defendant. See, e.g., Allen, 398 N.J. Super. at 250-52,
258-59 (remanding where a witness who did not testify at trial prepared an
affidavit and gave an interview to a defense investigator identifying another
person as the murderer); State v. Robinson, 253 N.J. Super. 346, 359-61, 367
(App. Div. 1992) (noting that it was proper for the judge to hold an evidentiary
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hearing where a co-defendant who was jointly tried and did not testify at trial
later swore that the defendant "'[did not]' participate in the robbery").
However, here, even if the recantation is believed, the affidavit does not
satisfy the Carter test because it does not exonerate defendant of accomplice
liability. See State v. Ramirez, 246 N.J. 61, 67 (2021) ("Although there are three
types of accomplice liability under N.J.S.A. 2C:2-6(c)(1), all three require the
accomplice to act or fail to act '[w]ith the purpose of promoting or facilitating
the commission of the offense.'" (emphasis omitted) (quoting N.J.S.A. 2C:2-
6(c)(1))); State v. Daniels, 224 N.J. 168, 179 (2016) ("Under accomplice
liability, the accomplice is 'guilty of the same crime committed by the principal
if he shares the same criminal state of mind as the principal.'" (quoting State v.
Whitaker, 200 N.J. 444, 458 (2009))).
Critically, the affidavit only specifically refuted the claim that defendant
had asked Taveras to take defendant to the Bronx to get a gun. The affidavit did
not repudiate the fact that defendant accompanied Taveras and Siguencia on
Taveras's trip to get a gun for which none of the men had a permit, that defendant
agreed to accompany both men back to the club knowing that Taveras was armed
and intended to commit an offense, and that defendant remained in the getaway
vehicle while the shooting occurred. At no point did defendant attempt to leave
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or renounce the planned crime. See Daniels, 224 N.J. at 179-80 ("[U]nder the
defense of renunciation, an actor is not guilty of accomplice liability if he
proves, by a preponderance of the evidence, that he abandoned his efforts to
commit the crime or otherwise prevented its commission." (citing N.J.S.A.
2C:2–6(e)(3))). Because a motion for a new trial would not have been
successful, defendant's attorney was not constitutionally ineffective for not
filing the motion and defendant was not prejudiced by the omission.2
Accordingly, the judge did not abuse his discretion in denying defendant an
evidentiary hearing or PCR.
Affirmed.
2
Although the record is unclear, we presume counsel was aware of the
recantation and able to file the motion.
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