STATE OF NEW JERSEY VS. MIRLE LOPEZÂ (94-12-1412, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-2215-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIRLE LOPEZ,
Defendant-Appellant.
Submitted May 10, 2017 – Decided July 18, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment No. 94-12-1412.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joseph Anthony Manzo,
Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant Mirle Lopez appeals the November 9, 2015 decision
denying his petition for post-conviction relief (PCR) after an
evidentiary hearing on remand by the Supreme Court. We now affirm.
Tried by a jury, defendant was convicted of two counts of
first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree
possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5; and two counts of fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4). He was sentenced on December 1, 1995, to
an extended term, and as a second-time offender under the Graves
Act, to a presumptive fifty years imprisonment subject to twenty-
five years of parole ineligibility. The charges stemmed from a
convenience store robbery. The juveniles involved in the crime
testified against defendant.
Defendant, who had a juvenile history, had been previously
convicted of four indictable offenses, including armed robbery.
Defendant's presentence report included information about his
suicide attempts, psychiatric hospitalization, and drug use.
Defendant told the author of the presentence report that he left
school in the 7th grade.
During the sentence proceeding, defendant vigorously objected
to his attorney's representation, claiming he was innocent and his
attorney was ineffective. On the record in defendant's presence,
his trial attorney said defendant had instructed him not to speak.
Defendant spoke at some length on his own behalf. He said, among
other things: "Most of the defendants that come into this
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courtroom are people that society do not want; victims of the
ghetto, the slum parts of Paterson, people who can be saved and
rehabilitated. Yet, they have no chance for survival for your
lawyers don't grant them the opportunity." When the prosecutor
made his presentation during the sentence hearing, defendant
literally turned his back on him. Before the judge completed
handing down the sentence, defendant asked to be removed from the
courtroom.
Defendant's direct appeal was denied. State v. Lopez, (Lopez
I) No. A-2950-95 (App. Div. May 2, 1997). On appeal, defendant
raised as a point of error his attorney's allegedly ineffective
assistance, including his alleged "abandon[ment] [of] his client
at sentencing, fail[ure] to present any mitigating factors and
allow[ing] the defendant to be sentenced arbitrarily." We deferred
resolution of that claim to a later PCR petition. Id. at 5.
With regard to the claim of excessive sentence, however, we
said that:
The sentence was proper. The conviction
of armed robbery was the defendant's second
conviction under the Graves Act. See N.J.S.A.
2C:43-6(c). Defendant's accomplices used a
gun at the robbery and the defendant was aware
of that fact. See State v. White, 98 N.J.
122, 131 (1984). A BB gun is a firearm within
the meaning of the Graves Act. See N.J.S.A.
2C:39-1(f); State v. Mieles, 199 N.J. Super.
29, 37 (App. Div.), certif. denied, 101 N.J.
265 (1985).
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Defendant received a presumptive term of
fifty years. See N.J.S.A. 2C:44-1(f)(1); see
also N.J.S.A. 2C:43-6(c); N.J.S.A. 2C:43-
7(c); N.J.S.A. 2C:44-3(d). The judge properly
found and applied the aggravating factors; he
found no mitigating factors. The sentence was
not excessive. See State v. Roth, 95 N.J.
334, 363-64 (1984).
[Ibid.]
The Supreme Court denied defendant's petition for certification.
151 N.J. 465 (1997).
Defendant's first PCR petition was denied on June 23, 2000.
In his written statement of reasons, the late Judge Edward V.
Gannon found, among other things, that trial counsel had not been
ineffective during the trial. Counsel throughout the trial made
certain strategic decisions which were stated for the record,
without objection from defendant. The judge also noted that
defendant had been previously represented by the same attorney,
and that in the prior matter defendant had been acquitted. On
appeal, we affirmed the denial of PCR. State v. Lopez (Lopez II),
No. A-0247-00 (App. Div. Mar. 4, 2002). The Supreme Court again
denied defendant's petition for certification. 174 N.J. 41 (2002).
Defendant then filed unsuccessful habeas corpus proceedings
in the federal courts which were ultimately denied by the Supreme
Court in 2005. Lopez v. Ortiz, Adm'r, E. Jersey State Prison, 546
U.S. 845, 126 S. Ct. 369, 163 L. Ed. 2d 111 (2005).
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Defendant's second PCR petition was denied in the Law Division
on November 17, 2009. The court denied relief on the basis that
the expert report defendant had by then obtained regarding his
mental condition could have been produced at the first PCR hearing.
Defendant's expert report stated that he was borderline mentally
retarded, has a learning disability, and a history of depression
with psychotic feature and had been a drug user.
The judge opined that given the nature of the offense, an
armed robbery from a convenience store, there was "enough severity
in the crime and in the record to more than justify the sentence
that was given." The judge also relied on the fact defendant told
his attorney to say nothing at sentencing, and that defendant
insisted he just wanted to end the sentence hearing as quickly as
possible.
On October 26, 2011, we denied defendant's appeal. State v.
Lopez (Lopez III), No. A-4955-09 (App. Div. Oct. 26, 2011). We
concluded that the petition was procedurally barred under Rule
3:22-4, as the claims regarding defendant's mental health issues
could have been raised in defendant's first petition. Id. at 4.
We further found defendant's second petition to be grossly out of
time, see R. 3:22-12, even when viewed within the time limitations
in effect when the first PCR petition was filed. Lopez III, supra,
slip op. at 4. Lastly, we stated that having silenced his
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attorney, defendant could not now be heard to complain. Id. at
4-5.
On April 9, 2012, the Court summarily remanded the matter for
an evidentiary hearing. 212 N.J. 572 (2012). On remand, the
expert actually testified, as did defendant's trial attorney. The
attorney stated that although he had no independent memory of the
case, it was clear his client instructed him not to say anything
at the sentence hearing and that he would "typically acquiesce to
the instruction of my client."
On November 9, 2015, the Law Division judge, in a twelve-page
written opinion, denied PCR relief. By way of preface the judge
stated that the delay between the remand and the hearing was
occasioned by difficulties in compiling the "underlying pleadings
and submissions" in order to assemble a complete file. The judge
noted that during the PCR hearing, defendant had been disruptive,
"reminiscent of the very type of behavior he demonstrated during
the original sentencing proceeding. . . ." The judge found based
on his review of the transcript that
[d]efendant emphatically attempted to control
the course of proceedings and insisted that
his trial counsel not speak on his behalf at
sentencing. It would be unjust to now allow
defendant's recalcitrance to work to his
advantage by prevailing on an ineffective
assistance argument he was solely responsible
for potentially precipitating. Further, as
was established during oral argument, there
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was reference to defendant's mental state in
the presentence report.
The judge observed that the sentencing judge could well have
considered the evidence found in the presentence report in
mitigation, even in the absence of an expert report, but did not.
He therefore concluded that the expert's report would not have
affected the outcome because it would not have been the basis for
mitigating factors. The sentencing judge had the same or similar
information available via the presentence report but did not
consider it a basis for the grant of any mitigating factors. Thus
the presumptive sentence would not have been modified. This appeal
followed.
Defendant now raises the following points of error for our
consideration:
POINT I
DUE TO THE ESTABLISHED INEFFECTIVENESS OF
COUNSEL AT SENTENCING, THE LOWER COURT ERRED
IN NOT GRANTING MIRLE LOPEZ'[S] PETITION FOR
POST CONVICTION RELIEF.
POINT II
THE COURT ERRED IN IGNORING THE OBVIOUS
PRESENCE OF MENTAL RETARDATION AND OTHER
MENTAL ISSUES OF THE DEFENDANT AND FINDING
THERE WERE NO POSSIBLE SENTENCING MITIGATING
FACTORS.
Defendant formulated his theory of ineffective assistance of
counsel in the sentencing as far back as at least the direct appeal
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decision in 1997. He failed to raise the issue, clearly having
the opportunity to do so, on his first PCR in 2000.
Furthermore, defendant's 2006 petition was inexplicably out
of time. Having filed a first petition for PCR, defendant offered
no explanation for his six-year delay in filing the second, and a
more than ten-year delay in bringing the matter forward by way of
PCR petition.
Most significantly, however, defendant cannot now be heard
to object to his attorney's manner of representation if he silenced
him at the trial, choosing instead to speak for himself. At the
very least, it implicates the doctrine of invited error, because
defendant openly controlled the presentation of information to the
judge before the sentencing decision, and now complains that it
was mistaken. See State v. Munafo, 222 N.J. 480, 487 (2015)
(internal quotation marks and citation omitted) ("Under the
invited error doctrine, trial errors that were induced, encouraged
or acquiesced in or consented to by [defendant] ordinarily are not
a basis for reversal on appeal.").
We have previously held that defendants should not benefit
from calculated misconduct. In State v. Montgomery, 427 N.J.
Super. 403, 405 (App. Div. 2012), certif. denied, 213 N.J. 387
(2013), a defendant assaulted his attorney and then requested a
mistrial. On appeal, the defendant argued that the mistrial should
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have been granted. Id. at 406. We concurred with the Law Division
judge's decision to deny a mistrial. Ibid. Although the facts
in Montgomery are dissimilar, the holding applies. Here, as in
Montgomery, we conclude the defendant should not benefit from his
own misconduct. Having told his attorney to say nothing, this
defendant should not now be heard to complain because his attorney
stood mute.
In order to establish ineffective assistance of counsel, a
defendant must demonstrate substandard professional assistance and
ultimate prejudice to the outcome as a result thereof. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 683 (1984). Defendant in this case fails to meet that
standard, were he entitled, which he is not, to have us reach the
issue on the merits. He received the presumptive term of
incarceration, a favorable sentence, given that he was a
second-time Graves Act offender and received an extended term,
despite the absence of factors in mitigation. The judge had
available, by way of the presentence report, the information that
defendant had significant mental health and substance abuse
problems, and was at least academically limited. The judge could
have, even if not specifically asked to do so, used this
information in sentencing defendant. That he elected not to do
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so appears to us to be logical given that none of the information
constituted the basis for a specific statutory mitigating factor.
Trial counsel's acquiescence to his client's instruction does
not fall outside the range of competent representation. See RPC
1.2(a) ("A lawyer shall abide by a client's decisions concerning
the scope and objectives of representation[.]"). It is not clear
that the information in the expert's report would have made a
difference in the sentencing process since it did not fit into any
mitigating factor per se. Defendant received the presumptive term
even though the aggravating factors stood alone. Thus defendant
fails to meet either prong of the Strickland test.
Affirmed.
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