STATE OF NEW JERSEY VS. WILFREDO RODRIGUEZÂ Â (11-03-0406, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5543-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILFREDO RODRIGUEZ,
Defendant-Appellant.
____________________________________
Submitted August 1, 2017 – Decided November 28, 2017
Before Judges Sabatino and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0406.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Wilfredo Rodriguez appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the reasons that follow, we affirm.
In 2011, defendant pled guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual
assault, N.J.S.A. 2C:14-2(b); and two counts of fourth-degree
cruelty and neglect of children, N.J.S.A. 9:6-3. During the
plea colloquy, defendant admitted he (1) inserted his fingers
and penis into his cousin's vagina, who at the time of the
incident was less than thirteen-years of age; (2) touched the
vagina of an eleven-year old; and (3) although he and the two
victims were fully clothed, rubbed his groin against the
buttocks of two boys, ages six and seven.
Defendant was sentenced to a fifteen-year term of
imprisonment at the Adult Diagnostic and Treatment Center on the
conviction for first-degree aggravated sexual assault, subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a seven-
year term of imprisonment on the conviction for second-degree
sexual assault, also subject to NERA; and an eighteen-month term
of imprisonment for the two counts of cruelty and neglect of
children. All sentences were ordered to run concurrently.
Defendant did not file a direct appeal from his convictions and
sentence.
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In 2015, defendant filed a petition for post-conviction
relief; assigned counsel subsequently filed a brief on
defendant's behalf. The contention defendant asserted before
the PCR court relevant to the issues on appeal was plea counsel
informed him the State had DNA evidence directly linking him to
the criminal acts with which he was charged. In fact, the State
did not have such evidence.
Defendant argued had his attorney accurately represented
the State did not have any incriminating DNA evidence, he would
not have pled guilty and instead would have proceeded to trial.
Defendant further argued counsel failed to review discovery with
defendant, but a close reading of his argument is plea counsel
did not advise defendant the State did not possess inculpatory
DNA evidence.
The PCR court rejected defendant's argument and denied his
petition for post-conviction relief. The court found even if
plea counsel informed defendant the State possessed
incriminating DNA evidence, it is implausible defendant credited
such representation. The court reasoned defendant was aware any
DNA evidence that existed would not have survived the passage of
time between the commission of each criminal act and the time
each act was reported to the police. Thus, the court
determined, it was improbable defendant in fact relied upon the
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attorney's misrepresentation the State possessed DNA evidence
when defendant decided to plead guilty. The PCR court further
concluded that, in light of the charges, the number of victims,
and what court deemed a favorable plea offer, defendant would
not have spurned such offer and have risked going to trial.
On June 27, 2016, the PCR court entered an order denying
defendant's petition for post-conviction relief.
On appeal, defendant presents the following argument for
our consideration.
POINT I – MR. RODRIGUEZ IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT HIS
ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL.
The brief clarifies defendant challenges those determinations
made by the PCR court that are addressed above.
As a self-represented litigant, defendant filed a brief in
reply to the State's brief, in which he asserts the following
arguments:
POINT I – PETITIONER PRESENTED A PRIMA
FACIE CLAIM TO SUPPORT HIS REQUEST FOR
POST-CONVICTION RELIEF AND THEREFORE IS
ENTITLED TO AN EVIDENTIARY HEARING.
POINT II – THE EVIDENCE IN THE CASE FAILS
TO SUPPORT THE CHARGES.
In his brief, defendant argues he did not know the DNA evidence
would have diminished or dissipated over time, and that the
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factual basis for his plea to first-degree aggravated sexual
assault was deficient.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
a two-prong test. The first prong is counsel's performance was
deficient and he or she made errors so egregious counsel was not
functioning effectively as guaranteed by the Sixth Amendment to
the United States Constitution. Strickland, supra, 466 U.S. at
687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
The second prong is the defect in performance prejudiced
defendant's rights to a fair trial and there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Ibid. If a defendant has pled guilty, the second prong a
defendant must fulfill is "'there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty but would have insisted on going to trial.'" State
v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
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Here, we cannot find support in the record defendant was
aware the State was not in possession of DNA evidence that
linked him to the subject criminal acts. We also question,
without deciding, the trial court's assumption defendant, a lay
person, would have known any DNA evidence in this matter would
have been destroyed by the time he was charged. However, we
concur with the court defendant failed to present any evidence
that, but for plea counsel's alleged errors, there was a
reasonable probability defendant would not have pled guilty and
instead have insisted on going to trial. See ibid.There were four victims and four different crimes, making
this matter eligible for four consecutive sentences pursuant to
State v. Yarbough, 100 N.J. 627, 643-44 (1985). However, under
the plea agreement, the State agreed to recommend the sentences
on the four convictions run concurrently, and that the aggregate
sentence be limited to fifteen years. We agree with the PCR
court defendant secured a favorable plea agreement.
In our view, defendant failed to show it was probable that
had he known the State did not possess damaging DNA evidence, he
would have rejected the plea offer and have gone to trial,
risking the imposition of a far greater term of imprisonment if
he did not prevail. Accordingly, defendant did not make a prima
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facie showing of ineffectiveness of plea counsel sufficient to
satisfy the Strickland-Fritz standard.
We have considered the argument the factual basis to
defendant's plea to first-degree aggravated sexual assault was
insufficient. This argument was raised for the first time in a
reply brief; it is improper for a party to use a reply brief to
advance an issue for the first time. See L.J. Zucca, Inc. v.
Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87
(App. Div.), certif. denied, 218 N.J. 273 (2014). In addition,
this argument was not raised before the PCR court. "Generally,
an appellate court will not consider issues, even constitutional
ones, which were not raised below." State v. Galicia, 210 N.J.
364, 383 (2012). Even if this issue had been raised, the PCR
court did not address this question in its opinion and, thus, we
decline to do so in the first instance. Duddy v. Gov't Emps.
Ins. Co., 421 N.J. Super. 214, 221 (App. Div. 2011).
Affirmed.
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