STATE OF NEW JERSEY VS. CANDIDO MAYASÂ (07-02-0163, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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."
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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-3647-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CANDIDO MAYAS,
Defendant-Appellant.
_____________________________
Submitted September 26, 2017 - Decided October 24, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 07-02-0163.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Danielle
R. Pennino, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Candido Mayas appeals from a February 19, 2016
order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm.
A jury found defendant guilty of unlawful possession of a
handgun, N.J.S.A 2C:39-5b, and certain persons not to have weapons,
N.J.S.A 2C:39-7b. Defendant was subsequently sentenced to an
aggregate term of twenty years. Defendant appealed both the
conviction and sentence. We rejected defendant's contentions and
affirmed. See State v. Mayas, A-1710-11 (App. Div. Jan. 22, 2014).
The Supreme Court denied defendant's petition for certification.
See State v. Mayas, 218 N.J. 531 (2014).
Defendant filed a PCR petition alleging conflicts of interest
that deprived him of his right to a fair trial. In addition,
defendant claimed his appellate counsel's failure to raise the
conflict of interest claim in defendant's direct appeal
constituted ineffective assistance of counsel.
The PCR judge, who did not preside over defendant's criminal
trial, heard oral argument on the PCR application without
conducting an evidentiary hearing. The PCR judge denied
defendant's petition.
We provide a brief background of events prior to defendant's
criminal trial to give context to defendant's conflict of interest
claims. Prior to trial, co-defendant Michael Perez accepted a
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favorable plea deal in exchange for his testimony against
defendant. Perez was represented by Yaron Helmer, Esq. Helmer
had represented defendant eight years earlier in an unrelated
aggravated assault case. Defendant asked the trial court to find
that Helmer had a conflict of interest due to his prior
representation of defendant. The trial judge denied defendant's
conflict of interest motion.
Defendant also asserted collusion between Helmer and the
assistant prosecutor, David Branco, who allegedly negotiated
Perez's plea deal, although another prosecutor, Jon Reilly,
handled Perez's plea hearing. Defendant contended that Branco and
Helmer made an agreement when negotiating Perez's plea. According
to defendant, Branco negotiated a favorable plea deal for Perez
in exchange for future employment with Helmer's law firm several
years later.
In his comprehensive written decision on defendant's PCR
application, the PCR judge found that defendant had not presented
evidence of an impermissible or disqualifying conflict nor a prima
facie case of ineffective assistance of counsel. The PCR judge
concluded that because the conflict of interest claim between
defendant and Helmer was adjudicated by the trial judge, the claim
was precluded by Rule 3:22-5. The PCR judge also found defendant
failed to proffer any evidence of a conflict in Helmer's
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representation of Perez based upon Helmer's representation of
defendant in an unrelated criminal matter eight years earlier.
Defendant failed to identify any information gleaned during
Helmer's representation of defendant eight years earlier that
could have impacted defendant's trial.
The PCR judge also rejected defendant's claim of collusion
or improper conduct between Branco and Helmer as nothing more than
an unsubstantiated conspiracy theory. The judge noted that eight
months after defendant's conviction and three years after entry
of Perez's plea agreement, Branco left the prosecutor's office.
After leaving the prosecutor's office, Branco began working at
Helmer's law firm. Based upon the significant length of time
between Perez's plea negotiation and Branco's departure from the
prosecutor's office, the PCR judge found there was no possible
collusion between Helmer and Branco concerning future employment.
The PCR judge also found that defendant failed to establish
a prima facie case of ineffective assistance of counsel in
accordance with Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), regarding
appellate counsel's alleged deficient performance in failing to
raise the conflict of interest claim on defendant's direct appeal.
On appeal from the denial of his PCR petition, defendant
raises the following arguments:
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POINT ONE
DEFENDANT'S CONVICTIONS MUST BE REVERSED
BECAUSE APPELLATE COUNSEL FAILED TO PURSUE A
CONFLICT OF INTEREST REGARDING CO-DEFENDANT'S
ATTORNEY; IN THE ALTERNATIVE, THIS MATTER MUST
BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF
APPELLATE COUNSEL'S INEFFECTIVENESS.
POINT TWO
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE THAT THERE
EXISTED A CONFLICT OF INTEREST BETWEEN THE
ASSISTANT PROSECUTOR WHO NEGOTIATED CO-
DEFENDANT'S PLEA AGREEMENT AND THE CO-
DEFENDANT'S ATTORNEY.
Having considered these points in light of the record and the
applicable law, we affirm denial of defendant's PCR petition
substantially for the reasons set forth in the PCR judge's twenty-
three page, well-reasoned, written decision.
To establish a prima facie claim of ineffective assistance
of counsel, a convicted defendant must satisfy the two-part test
enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance
actually prejudiced the accused's defense. Id. at 687, 104 S. Ct.
at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J.
42, 58 (1987) (adopting the Strickland test in New Jersey).
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In reviewing ineffective assistance claims, courts apply a
strong presumption that a defendant's trial counsel "rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, supra,
466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"[C]omplaints 'merely of matters of trial strategy' will not serve
to ground a constitutional claim of inadequacy[.]" Fritz, supra,105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963),
cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075(1963), overruled on other grounds by State v. Czachor, 82 N.J.
392 (1980)). To establish a prima facie claim of ineffective
assistance of counsel, a defendant must demonstrate a reasonable
likelihood of succeeding under the Strickland/Fritz test. See
State v. Preciose, 129 N.J. 451, 463 (1992). To demonstrate the
likelihood of succeeding under the Strickland/Fritz test, a
defendant "must do more than make bald assertions[,] . . . [and]
must allege facts sufficient to demonstrate counsel's alleged
substandard performance." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We agree with the PCR judge that defendant failed to establish
the elements for an ineffective assistance claim as to his
appellate counsel. Appellate counsel is not required to raise
every possible issue and need only raise issues that have a
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reasonable possibility of success. State v. Gaither, 396 N.J.
Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 N.J. 444(2008). In this case, there was no evidence of collusion or a
conflict of interest between Helmer and Branco. There is nothing
in the record supporting defendant's theory that Branco planned
to join Helmer's law firm three years in advance and therefore
conspired to negotiate a favorable plea deal for Helmer's client
in 2008. We agree with the PCR judge that defendant's "bald
assertion . . . flies in the face of logic and common sense." We
further agree with the PCR judge that defendant's ineffective
assistance claim as to his appellate counsel is "a rabbit warren
of irrelevant information predicated upon speculation, conjecture,
and conspiracy paranoia of the first order. There [was] no
mystery. The prosecution simply gave up too much for codefendant's
testimony. It was a tactical error and in the end it benefitted
[defendant]."1 Appellate counsel cannot be ineffective for failing
to raise a meritless claim. Defendant failed to demonstrate that
appellate counsel's performance was deficient or prejudicial. As
defendant failed to present a prima facie showing of
1
Because Perez's plea deal was so favorable, it compromised
Perez's credibility during defendant's trial and defendant was
acquitted of the most serious charges.
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ineffectiveness, no evidentiary hearing was required. Preciose,
supra, 129 N.J. at 462-63.
We find no merit in defendant's other contentions raising
issues that were either already decided on direct appeal or could
have been raised on direct appeal. See R. 3:22-4 and R. 3:22-5.
See also R. 2:11-3(e)(2).
Affirmed.
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