STATE OF NEW JERSEY VS. HIRAM A. CELESTINE (13-03-1025, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1238-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HIRAM A. CELESTINE, a/k/a
CURTIS BEATON, HIREN
CELESTINE, HIRAM
CELSTINE, ANDRE FOSTER,
LEROY JOHNSON, ANDRE
JOHNSON, ANDY JOHNSON,
ANDRE JONES, ANDRE
JOYNER, and DIAMOND SIMS,
Defendant-Appellant.
_____________________________
Submitted October 25, 2021 – Decided November 8, 2021
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 13-03-1025.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Natalie A. Schmid
Drummond, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a September 11, 2019 order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. Defendant
contends his trial and PCR counsel rendered ineffective assistance. Judge
Francisco Dominguez (PCR judge) thoroughly considered defendant's
contentions and rendered a comprehensive oral decision, on which we
substantially agree. We affirm.
I.
A jury convicted defendant of four counts of second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(4); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b); second-degree attempted sexual assault, N.J.S.A. 2C:14-2(a)(6); first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2); third-degree tampering with a witness, N.J.S.A.
2C:28-5(a); and the disorderly persons offense of harassment, N.J.S.A. 2C:33-
4(b). The trial judge sentenced defendant to an aggregate of thirty-nine years'
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imprisonment, with twenty-five years' parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).
We affirmed defendant's convictions. State v. Celestine, No. A-2803-14
(App. Div. May 8, 2017). The New Jersey Supreme Court denied defendant's
petition for certification on October 17, 2017. Defendant then filed a petition
for PCR. The PCR judge denied the petition and ruled it was procedurally
defective under Rule 3:22-5, as an attempt to relitigate previously adjudicated
issues, and improper under Rule 3:22-4, for failure to raise on appeal. The PCR
judge also found defendant was not entitled to an evidentiary hearing on his
petition. But in a supplemental hearing, the PCR judge addressed the merits of
defendant's claims and found that defendant failed to establish by a
preponderance of the evidence a prima facie case of ineffectiveness of counsel.
II.
We set forth the facts in our May 8, 2017 unreported opinion. Suffice it
to say, defendant had a sexual relationship with minor A.K. They met when
defendant, who was working in Camden County in the summer of 2010, was
renting a room at the same motel where A.K. resided with her sister, mother,
and stepfather. It was disputed at trial exactly how old A.K. was when the
sexual relationship started. A.K. testified that she began the sexual relationship
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with defendant when she was fifteen years old. A.K. testified she and defendant
had sex in his motel room when her mother and stepfather were not at the motel.
Defendant contended that their physical relationship did not begin until A.K.
was sixteen years old.
In September 2010, defendant was asked to leave the motel by
management but was able to continue staying there in a friend's room. A.K.
testified their sexual relationship continued in the friend's room. In November
2010, A.K. and her family moved out of the motel and into a family member's
house. Defendant and A.K. stayed in contact. When defendant moved out of
the area, he testified that he tried to visit A.K. every two weeks from July 2011
to July 2012. A.K. testified defendant visited her earlier, in December 2010,
and they had sex in a park and at the Riviera Inn.
A.K. testified that in the summer of 2012, she ended their relationship and
informed him that she wanted to be with someone else. After their relationship
ended, A.K. testified that she met defendant one last time in September 2012.
A.K. understood that defendant wanted "to lay down, hold [her] one more time,
and talk." During that meeting, A.K. testified that defendant forcibly raped her.
Defendant denied raping A.K. and further denied ever having sexual intercourse
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with her before she turned sixteen years old. In September 2012, a nearby
officer arrested defendant after observing him pulling a crying A.K.
III.
On appeal, defendant raises the following argument for this court's
consideration:
[POINT I]
THE PCR [JUDGE] SHOULD HAVE GRANTED
DEFENDANT AN EVIDENTIARY HEARING ON
HIS PETITION FOR [PCR] BASED UPON HAVING
MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF COUNSEL
WHERE TRIAL COUNSEL FAILED TO PRESENT
CLEARLY EXCULPATORY EVIDENCE AT TRIAL.
In his pro se brief, defendant raises the following points, which we renumbered:
POINT [II]
THE FAILURE[] OF PCR COUNSEL TO PROVE[]
EFFECTIVE ASSISTANCE OF COUNSEL ON PCR
MANDATES THAT [A] NEW PCR HEARING WITH
NEW PCR COUNSEL BE GRANTED.
POINT [III]
THE PCR [JUDGE] ABUSED [HIS] DISCRETION
WHEN [HE] BOTH ERRONEOUSLY DETERMINED
UNDER [RULE] 3:22-4, THAT ALL OF THE
CLAIMS RAISED WERE BARRED FOR FAILURE
TO RAISE CLAIM ON DIRECT REVIEW AND
FAILED TO RECOGNIZE THAT A PRIMA FACIE
CASE WAS ESTABLISHED.
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POINT [IV]
THE PCR [JUDGE] ERRED WHEN [HE]
ADJUDICATED [DEFENDANT]'S ISSUES
WITHOUT FIRST RESOLVING [DEFENDANT]'S
CONFLICT WITH HIS PCR COUNSEL IN WHICH
HE RAISED INEFFECTIVE ASSISTANCE OF PCR
COUNSEL BEFORE THE PCR [JUDGE].
IV.
When a PCR judge does not hold an evidentiary hearing, this court's
standard of review is de novo as to both the factual inferences drawn by the
judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016).
A.
Certain procedural safeguards exist to protect against addressing issues in
a piecemeal fashion. Under Rule 3:22-5, "[a] prior adjudication upon the merits
of any ground for relief is conclusive whether made in the proceedings resulting
in the conviction or in any post-conviction proceeding" or "in any appeal taken
from such proceedings." "PCR will be precluded 'only if the issue is identical
or substantially equivalent' to the issue already adjudicated on the merits." State
v. Afanador, 151 N.J. 41, 51 (1997) (emphasis omitted) (quoting State v.
McQuaid, 147 N.J. 464, 484 (1997)).
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PCR proceedings are not a substitute for a direct appeal. R. 3:22-3;
Afanador, 151 N.J. at 50. "Ordinarily, PCR enables a defendant to challenge
the legality of a sentence or final judgment of conviction by presenting
contentions that could not have been raised on direct appeal." Afanador, 151
N.J. at 49 (citing McQuaid, 147 N.J. at 482-83). "PCR cannot be used to
circumvent issues that could have, but were not raised on appeal, unless the
circumstances fall within one of three exceptions." Id. at 50 (emphasis omitted)
(citing R. 3:22-4). Those exceptions are: "(1) the ground not previously asserted
could not have been reasonably raised in any prior proceeding"; (2)
"enforcement of the bar to preclude claims, including one for ineffective
assistance of counsel, would result in fundamental injustice"; or (3) "denial of
relief would be contrary to a new rule of constitutional law" under the United
States or State of New Jersey constitutions. R. 3:22-4(a)(1)-(3). "The first
exception is only available to a petitioner if he can show that the facts that form
the basis for relief 'could not have been discovered earlier through the exercise
of reasonable diligence.'" State v. Nash, 212 N.J. 518, 546 (2013) (quoting R.
3:22-4(a)(1)).
The PCR judge ruled defendant's PCR petition claim, that his trial counsel
was ineffective for failing to make a renewed motion to dismiss count seven of
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the indictment, was barred under Rule 3:22-5. We agree. The PCR judge found
that defendant's remaining claims were procedurally barred under Rule 3:22-
4(a). In any event, despite the procedural bar, the PCR judge considered and
addressed defendant's PCR claims on the merits.
B.
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 466
U.S. 668, 687 (1984) and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, a defendant must
establish that his counsel "made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
466 U.S. at 687. A defendant must rebut the "strong presumption that counsel's
conduct [fell] within the wide range of reasonable professional assistance." Id.
at 689. Thus, this court must consider whether counsel's performance fell below
an objective standard of reasonableness. Id. at 688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
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proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
A defendant is only entitled to an evidentiary hearing when he "has
presented a prima facie [claim] in support of [PCR]," meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 462 (1992)). A defendant must "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). This court must "view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 462-63.
Defendant argues that his trial counsel failed to investigate and call three
witnesses: (1) a motel manager (the manager) who could have provided
testimony that defendant was not at the motel during the dates alleged by A.K.;
(2) a former work supervisor (the supervisor) who could have testified that
defendant was at work during the time he was alleged to have been with A.K.;
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and (3) an investigator (the investigator) who could have testified that she went
through motel records with the owner and to the lack of any record of defendant
being present at times A.K. alleged he was there. Defendant contended that had
the PCR judge held an evidentiary hearing, he could have demonstrated, through
the potential witnesses' testimony, the lack of credibility of A.K. and other State
witnesses who testified at trial.
The PCR judge correctly determined that defendant failed to satisfy the
Strickland/Fritz test. Defendant did not provide certifications or affidavits from
the manager and supervisor. Defendant failed to establish how they would have
testified or what testimony would have been exculpatory. Defendant failed to
satisfy either prong of Strickland/Fritz and, as a result, failed to establish a prima
facie claim to warrant an evidentiary hearing.
Defendant provided the investigator's affidavit, in which she certifies to
the existence of motel records. The investigator also certified that she is no
longer in possession of the records and she does not know their location. At
trial, Detective Amy Pisano of the Camden County Prosecutor's Office's
testimony directly contradicted the investigator's affidavit, as Detective Pisano
testified she was unable to gather any records from the motel. Even assuming
arguendo that trial counsel's failure to call the investigator as a witness meets
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the first prong of proving deficient performance, defendant has not established
there is a reasonable probability that but for counsel's failure to call the
investigator, the outcome at trial would have been different under the second
prong of Strickland/Fritz. The record supports the PCR judge's findings.
C.
"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).
Nonetheless, the standard for ineffective assistance of counsel claims related to
PCR counsel is that:
PCR counsel must communicate with the client,
investigate the claims urged by the client, and
determine whether there are additional claims that
should be brought forward. Thereafter, counsel should
advance all of the legitimate arguments that the record
will support. If after investigation counsel can
formulate no fair legal argument in support of a
particular claim raised by defendant, no argument need
be made on that point. Stated differently, the brief must
advance the arguments that can be made in support of
the petition and include defendant's remaining claims,
either by listing them or incorporating them by
reference so that the judge may consider them.
[State v. Webster, 187 N.J. 254, 257 (2006).]
In his pro se brief, defendant argues his PCR counsel was ineffective in
presenting clear evidence of trial counsel's deficient performance. Specifically,
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defendant argues PCR counsel failed to properly investigate the claims
forwarded by defendant and failed to communicate with defendant. Defendant
requests that this court consider the errors of his PCR counsel on this appeal.
Defendant did not raise this issue below. During the PCR hearing on July
26, 2019, defendant did not indicate any issues with his PCR counsel. At the
beginning of the September 6, 2019 supplemental PCR hearing, defendant's PCR
counsel indicated that defendant "wishes to I think as I understand it represent
himself for purposes of today." Defendant then stated, "That's not what I stated."
Defendant's PCR counsel responded, "Or [defendant] doesn't wish me to
continue as counsel for purposes of today." The PCR judge explained that any
change in counsel was unnecessary because the PCR judge was only going to
read supplemental reasons for denying the petition and would not be hearing any
presentation from the parties. On March 12, 2020, defendant filed a second PCR
petition in which he argues that his PCR counsel was ineffective.
On this record, defendant provides no evidence showing his PCR counsel
failed to investigate claims or properly communicate with defendant. He also
does not specify or bring forth evidence as to how his PCR counsel failed to
present trial counsel's deficient performance. Nevertheless, we will not address
defendant's contention that his PCR counsel rendered ineffective assistance,
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which is more appropriately left for the new PCR petition filed on March 12,
2020.
Affirmed.
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