STATE OF NEW JERSEY VS. JORGE RODRIGUEZ (11-01-0003, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5611-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE RODRIGUEZ, a/k/a
JORGE RODRIGUES,
Defendant-Appellant.
_____________________________
Submitted October 16, 2018 – Decided October 23, 2018
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-01-0003.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah E. Elsasser, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Jorge Rodriguez appeals from the denial of his petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Along with co-defendants Jhon Yebes and Pedro Dominguez, defendant
was charged with two counts of armed robbery, possession of a knife for an
unlawful purpose, and unlawful possession of a knife. The charges stemmed
from an August 21, 2010 knifepoint robbery in Elizabeth.
The victims of the robbery gave descriptions to the police of their
assailants shortly after the incident. Based on the descriptions, police
apprehended defendant, Yebes, and Dominguez in the area near the robbery, and
the victims identified them on-site as three of their four attackers. At the time
of their arrest, the three men were each carrying items that belonged to the
victims.
Defendant, Yebes, and Dominguez were tried together, and were found
guilty of all charges. The trial court sentenced defendant to two consecutive
fifteen-year terms with eighty-five percent parole disqualification for the two
armed robbery counts. The remaining counts merged.
We affirmed defendant's conviction on direct appeal but remanded for
resentencing. After the Supreme Court denied certification, the trial court
resentenced defendant to a fifteen-year sentence for one robbery and a
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consecutive term of eleven years for the other, both with eighty-five percent
parole disqualification.
After we affirmed defendant's sentence, defendant filed for PCR. In his
petition, defendant alleged his trial counsel provided ineffective assistance by
failing to 1) file a motion for severance; 2) object to statements by the
prosecutor; 3) object to a lack of written jury instructions on identification; 4)
argue mitigating factors at sentencing; and 5) discuss plea offers with him.
The PCR judge denied defendant's petition. The judge found defendant's
claims that counsel was ineffective for failing to object to the prosecutor's
comments and to the lack of written instructions on identification were barred
by Rule 3:22-5 and that defendant's claim that counsel failed to argue mitigating
factors was barred by Rule 3:22-4.
The PCR judge concluded that defendant failed to establish a prima facie
case of ineffective assistance of counsel as to his remaining arguments. He
found that his defense did not conflict with his co-defendants'. The judge also
found defendant's claim that counsel never discussed plea offers with him w as
contradicted by the record.
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On appeal, defendant argues the PCR judge erred by not holding an
evidentiary hearing on his claim that counsel was ineffective by failing to move
for severance. Defendant's brief includes one point of argument:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO MOVE FOR A SEVERANCE
FROM HIS CO-DEFENDANTS.
Based on our review of the record and the applicable law, we conclude
this argument lacks sufficient merit to warrant extended discussion. R. 2:11-
3(e)(2). We affirm substantially for the reasons set forth by Judge John M.
Deitch in his cogent written opinion. We add the following comments.
An evidentiary hearing is required in a PCR matter only once a defendant
establishes a prima facie case of ineffective assistance of counsel. State v.
Preciose, 129 N.J. 451, 462-63 (1992). "To establish a prima facie case,
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 have succeeded on his claim of ineffective assistance of counsel,
defendant needed to show that counsel's performance was deficient and that
there was a "reasonable probability that, but for counsel's unprofessional errors,
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the result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 694 (1984).
In general, "complaints 'merely of matters of trial strategy' will not serve
to ground a constitutional claim of inadequacy of representation by counsel."
State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471,
489 (1963)). Defense counsel's failure to file a motion that lacks merit cannot
support a finding of ineffective assistance. State v. Fisher, 156 N.J. 494, 501
(1998). Here, a motion to sever would likely have been denied because
defendant was charged with crimes arising from "the same series of acts" as his
co-defendants, and "much of the same evidence [was] needed to prosecute each."
State v. Brown, 118 N.J. 595, 605 (1990). There is also no evidence in the
record that the joint trial prejudiced defendant because his defense was not
mutually exclusive from his co-defendants'. Id. at 606. Because defendant
failed to establish a prima facie case of ineffective assistance of counsel, an
evidentiary hearing was not required.
Affirmed.
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