STATE OF NEW JERSEY VS. JUAN TOMAS-AGUILAR(11-05-0816, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3199-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN TOMAS-AGUILAR,
Defendant-Appellant.
___________________________
Submitted September 19, 2017 – Decided October 13, 2017
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
11-05-0816.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa
Sarnoff Gochman, Legal Assistant, of counsel
and on the brief).
PER CURIAM
Defendant Juan Tomas-Aguilar appeals from an April 18, 2016
order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm because defendant failed
to show a prima facie case of ineffective assistance of his trial
counsel.
I.
In 2011, a jury convicted defendant of first-degree robbery,
N.J.S.A. 2C:15-1; third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(2). Defendant was sentenced
to an aggregate term of twelve years in prison, with eighty-five
percent of that time ineligible for parole as prescribed by the
No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant's convictions arose out of the robbery of a taxi
driver. The taxi driver testified that he agreed to take defendant
from Point Pleasant to Asbury Park for $28. When they arrived in
Asbury Park, defendant asked the driver for change for a $100 bill
and the driver pulled out five $20 bills. According to the driver,
defendant pulled out a knife and held it to his throat. The driver
asked two women who were walking by to call the police. A struggle
ensued and the driver managed to disarm defendant. Defendant,
however, took the five $20 bills and fled as the police were
arriving. Following a short chase, the police apprehended
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defendant. When arrested, defendant was found to be in possession
of five $20 bills and cocaine.
Defendant testified in his own defense and claimed that he
had fallen asleep in the taxi. He went on to explain that when
the driver tried to wake him up, they got into an altercation and
he ran off when the police arrived because he knew he possessed
drugs.
During deliberations, the jury submitted several questions
to the judge. In one question, the jury asked for a transcript
of defendant's testimony. In response, the trial judge informed
the jury that they could have a read back of the testimony, but
that it would take approximately one hour. Defense counsel did
not object to that response and the jurors sent out a note stating
that they did not need to hear the read back. The jury also asked
for clarification on the charge of unlawful possession of a weapon.
The judge responded by repeating his earlier instructions
concerning possession of a weapon and used an example of a person
holding a beer mug and using it to hit another person over the
head. Again, there was no objection to the trial judge's response
and Juror No. 1 confirmed that the judge's explanation answered
their question.
Defendant filed a direct appeal, and we affirmed. State v.
Juan Tomas-Aguilar, No. A-5559-11 (App. Div. May 27, 2014) (slip
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op. at 8). On his direct appeal, defendant argued that the trial
judge erred in responding to the jury's questions during
deliberations. We rejected those arguments holding that the trial
judge's responses were appropriate under the circumstances and
there was no plain error. Id. at 6. The Supreme Court denied
defendant's request for certification. State v. Tomas-Aguilar,
220 N.J. 99 (2014).
In 2015, defendant filed a PCR petition, he was assigned
counsel, and the PCR court heard oral argument on the petition.
On January 26, 2016, the PCR court denied the petition and
defendant's request for an evidentiary hearing. The court issued
a written opinion in support of its decision. On April 18, 2016,
the court filed an amended order to correct the identification of
the indictment number. Defendant now appeals the denial of his
PCR petition.
II.
On appeal, defendant argues:
POINT ONE – MR. TOMAS-AGUILAR IS ENTITLED TO
AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS
ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL
Defendant asserts that his trial counsel was ineffective
because counsel failed to properly prepare for and investigate the
charges and failed to make appropriate objections. With regard
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to the investigation allegation, defendant asserts that his trial
counsel only started preparing for trial a few days before the
trial and failed to request DNA testing on the knife.
With regard to the failure to object, defendant contends that
his trial counsel should have objected to the trial judge's
responses to the jury concerning both the request for a read back
and the request for clarification on the possession of a weapon
charge.
Defendant's petition arises from the application of Rule
3:22-2, which permits collateral attack of a conviction based upon
a claim of ineffective assistance of counsel within five years of
the conviction. See R. 3:22-12(a)(1); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To
establish a claim of ineffective assistance of counsel, a defendant
must satisfy the two-part Strickland test by showing: (1) "counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment[,]" and
(2) "the deficient performance prejudiced the defense."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J.
at 58-59 (adopting the Strickland two-part test in New Jersey).
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Rule 3:22-10(b) provides that a defendant is only entitled
to an evidentiary hearing if he or she establishes a prima facie
case in support of PCR. Moreover, there must be "material issues
of disputed fact that cannot be resolved by reference to the
existing record," and the court must determine that "an evidentiary
hearing is necessary to resolve the claims for relief." State v.
Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). To
establish a prima facie case, a defendant must demonstrate "the
reasonable likelihood of succeeding under the test set forth in
Strickland." State v. Preciose, 129 N.J. 451, 463 (1992).
Here, defendant failed to establish a prima facie showing
under the Strickland test. Defendant first contends that his
trial counsel failed to adequately prepare for trial, including
having the knife tested for DNA. Defendant argues that his trial
counsel only started to prepare four days before trial. He fails
to make any showing, however, that four days was an inadequate
amount of time to prepare. In other words, defendant makes a
conclusory allegation without any factual support. Such
unsupported claims cannot establish a prima facie claim of
ineffective assistance of counsel. See State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.)("[I]n order to establish a prima
facie claim, a petitioner must do more than make bald assertions
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that he was denied the effective assistance of counsel."), certif.
denied, 162 N.J. 199 (1999).
Defendant also argues that trial counsel should have
conducted DNA testing on the knife. He speculates that such
testing would not have revealed his DNA on the knife. Again, that
allegation is speculation and cannot support a prima facie showing
of ineffective assistance of counsel. Moreover, as the PCR judge
noted, trial counsel may well have had strategic reasons for not
having the knife tested for DNA.
Moreover, defendant has made no showing that the alleged
inadequate investigation by trial counsel prejudiced his defense.
Defendant must establish "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings
would have been different." Strickland, supra, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant also contends that his trial counsel was
ineffective in failing to object to the court's responses to
questions posed by the jury during deliberation. On direct appeal,
we held that the trial court did not err in responding to the
questions posed by the jury. Indeed, we held that under the
circumstances of this case, the trial judge's responses were
appropriate. Accordingly, even if trial counsel had objected,
there is no basis for defendant to claim that there was any
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resulting prejudice to his defense. Defendant must affirmatively
prove prejudice to the defense. Strickland, supra, 486 U.S. at
694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, defendant has
failed to make such an affirmative showing of prejudice.
Affirmed.
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