STATE OF NEW JERSEY VS. GEORGE SANCHEZ (12-05-0801, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0477-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE SANCHEZ,
Defendant-Appellant.
__________________________
Submitted March 23, 2020 – Decided May 19, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-05-0801.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kisha M.S. Hebbon, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Craig A. Becker, Assistant Prosecutor, of
counsel and the brief).
PER CURIAM
Defendant George Sanchez appeals from a Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. His
petition claimed counsel provided ineffective assistance by not sufficiently
meeting with him prior to trial and failing to subpoena the assault victim's
medical records. He now argues he was entitled to an evidentiary hearing
because the PCR judge erroneously found: (1) his claims procedurally barred
from review under Rules 3:22-4(a) and 3:22-5, because they were not raised or
were previously adjudicated in his direct appeal; and (2) his claims, on their
merits, did not make out a prima facie case of ineffective assistance of counsel.
We disagree with the judge that defendant's claims were procedurally barred,
but we affirm because we agree with him that the claims are without merit.
I
To resolve the issues raised in this PCR appeal, we need not discuss the
trial evidence, which is detailed in our twenty-seven-page unpublished opinion
affirming defendant's convictions for fourth-degree false imprisonment, third-
degree aggravated criminal sexual contact while the victim was physically
helpless, second-degree attempted aggravated sexual assault on a helpless
victim, third-degree criminal sexual contact without the victim sustaining severe
injury, second-degree attempted sexual assault, fourth-degree harassment, third-
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degree attempted aggravated assault, and third-degree terroristic threats, as well
as his sentence of an aggregate ten-year prison term subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. State v. Sanchez, No. A-0392-14 (App. Div.
Jan. 27, 2017) (slip op. at 2), certif. denied, 230 N.J. 541 (2017). On direct
appeal, we remanded, with the State's concession, for the limited purpose of
correcting an error on the judgement of conviction, which did not alter
defendant's sentence. Accordingly, we limit our focus to defendant's
contentions on this appeal.
II
In his PCR petition, defendant raised two claims of ineffective assistance
of counsel. First, his certification in support of PCR alleged his trial counsel
provided "inadequate pre-trial investigation" by discussing the case prior to trial
with him only once by means of a video conference at the county jail. Had
counsel visited more, defendant argues, they would have had the proper amount
of time to discuss trial strategies and all possible defenses resulting in "a
stronger case and [he] would have been acquitted at trial." Defendant relies on
our decision in State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000), where
we held "a defendant is entitled to a complete and vigorous defense, requiring
counsel, at the very least, to investigate all substantial defenses available to a
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defendant." (internal quotations removed) (citing United States v. Baynes, 687
F.2d 659, 668 (3d Cir. 1982)). Defendant's certification did not assert what
strategies or defenses were not discussed during their video conference that
should have been pursued at trial.
Second, defendant contended counsel was ineffective for failing to
subpoena the victim's (his former girlfriend's) hospital emergency room records
detailing the treatment she received the day after her alleged assault, despite
defendant's request that he do so. Defendant asserted the records would have
undermined her claim that he sexually assaulted her because there was no DNA
linking him to a sexual assault and her injuries were not consistent with those of
a sexual assault victim. Defendant further contended the victim's credibility
could have been impeached because the records showed she did not go to the
hospital immediately and, after going, refused a rape kit because she did not
claim to be sexually assaulted. According to defendant, these credibility attacks
would have made the State's prosecution weaker, resulting in his acquittal.
Upon considering the parties' briefs and oral argument, the PCR judge
denied defendant's petition without an evidentiary hearing for reasons set forth
in a ten-page written opinion. He found defendant's claims were procedurally
flawed under Rule 3:22-4(a) because they could have been – but were not –
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raised on direct appeal. The judge explained defendant had voiced his
dissatisfaction with counsel on several occasions in the trial record, in his
appellate brief, and in a post-trial complaint filed with a District Ethics
Committee. Referencing defendant's direct appeal, the judge noted this court
"held . . . there was no abuse of discretion by [a pre-trial] judge in deciding that
trial counsel could not withdraw as counsel" and defendant's "accusations made
against trial counsel were 'demonstrably false' . . . ." See Sanchez, slip op. at
25-26. Similarly, the judge pointed out defendant had withdrawn his ethics
complaint, stating his trial attorney was a "very competent attorney." The judge
determined defendant offered no explanation why he could not have included
his PCR claims on direct appeal based on the record. He also held Rule 3:22-5
barred defendant's claims "because the issue of his attorney [performance] was
also addressed during the appeal[.]"
Before us, defendant contends the PCR judge improperly found his
petition procedurally barred under Rules 3:22-4(a) and 3:22-5. Citing State v.
Mitchell, 126 N.J. 565, 584-85 (1992) and State v. Cerbo, 78 N.J. 595, 605
(1979), defendant asserts Rule 3:22-4 is not applicable to his PCR claims
because they fell outside the trial record and denial of relief violates his federal
and state constitutional rights to counsel, due process, and a fair trial. As for
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Rule 3:22-5, defendant asserts it does not bar PCR because neither the trial court
nor this court on direct appeal addressed specific allegations of counsel's
incompetence. The State argues the PCR judge's ruling was correct.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must show: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition
based on claims of ineffective assistance has the discretion to grant an
evidentiary hearing only if a defendant establishes a prima facie showing in
support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).
The mere raising of a claim for PCR does not entitle a defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999).
A PCR claim is not a substitute for a direct appeal and must hurdle some
procedural bars. R. 3:22-3. "[A] defendant may not employ post-conviction
relief to assert a new claim that could have been raised on direct appeal . . . or
to relitigate a claim already decided on the merits . . . ." State v. Goodwin, 173
N.J. 583, 593 (2002). Under Rule 3:22-4, a defendant is barred from raising any
issue in a PCR petition that could have been raised on direct appeal unless one
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of three exceptions apply. See State v. Nash, 212 N.J. 518, 546 (2013). The
rule provides:
Any ground for relief not raised in the proceedings
resulting in the conviction, . . . or in any appeal taken
in any such proceedings is barred from assertion in a
proceeding under this rule unless the court on motion
or at the [PCR] hearing finds:
(1) that the ground for relief not previously asserted
could not reasonably have been raised in any prior
proceeding; or
(2) that enforcement of the bar to preclude claims,
including one for ineffective assistance of counsel,
would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule
of constitutional law under either the Constitution of
the United States or the State of New Jersey.
[R. 3:22-4(a).]
Rule 3:22-5 provides "[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." "[A] prior adjudication on the merits ordinarily constitutes
a procedural bar to the reassertion of the same ground as a basis for post-
conviction review." Preciose, 129 N.J. at 476 (citing R. 3:22-5 ). "[A] defendant
may not use a petition for post-conviction relief as an opportunity to relitigate a
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claim already decided on the merits." State v. McQuaid, 147 N.J. 464, 483
(1997) (citation omitted).
Guided by these principles, we disagree with the PCR judge's
determination that defendant's claims that counsel provided ineffective
assistance – for inadequate pre-trial preparation or investigation and failing to
subpoena the victim's emergency room records – are procedurally barred by
Rules 3:22-4(a) and 3:22-5. The record on direct appeal was not developed
sufficiently to include the facts defendant alleged in his PCR petition to
demonstrate trial counsel's ineffectiveness. Although counsel's request to
withdraw was denied, which we concluded on direct appeal was not an abuse of
discretion,1 defendant did not specifically assert counsel failed to adequately
prepare for trial because he only met once with defendant, which aided the
State's prosecution to defendant's detriment. Accordingly, the claim was outside
the trial record. Additionally, the claim that counsel failed to subpoena the
victim's emergency room records was outside the trial record. Because neither
the trial court nor this court could have previously addressed these two claims,
defendant's claims were properly reserved for his PCR petition and are not
procedurally barred. See Preciose, 129 N.J. at 460.
1
Sanchez, slip op. at 25-26.
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III
Despite finding PCR procedurally barred, the PCR judge had the foresight
to consider the merits of defendant's claims, ultimately finding defendant failed
to establish a prima facie case of ineffective assistance of counsel. Defendant
disagrees with the judge's findings. He argues a remand for an evidentiary
hearing is necessary because counsel was deficient in only meeting with him
once prior to trial and failing to subpoena the victim's emergency room records.
In considering the merits of defendant's contentions, the judge held
defendant proved neither prong of Strickland's two-prong test. For the first
prong, the judge found defendant "merely ma[de] accusations that are not
supported in his papers. [He] simply makes statements but does not show how
trial counsel's representation is defective." The judge also found it significant
that defendant withdrew his ethics complaint, referring to counsel as a "very
competent attorney." For the second prong, the judge found defendant "failed
to prove how trial counsel's actions caused such a prejudice that he received an
unfair trial." To the contrary, the judge noted counsel's success in acquitting
defendant of first-degree charges for kidnapping and aggravated sexual assault.
We embrace the PCR judge's ruling, affirming substantially for the sound
reasons set forth in his oral decision. Defendant's arguments lack sufficient
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merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We
add the following brief comments.
It is well-settled that "in order to establish a prima facie claim, a
[defendant] must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient to demonstrate
counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.
We agree with the State that "defendant does not provide any factual basis for
why more visits [with counsel] would have led to acquittal." See State v. Porter,
216 N.J. 343, 347-48 (2013) (finding an evidentiary hearing was necessary
because the defendant had asserted a factual basis supported by evidence to
show what the outcome of the investigation could have been). The same applies
with respect to defendant's claim that counsel was deficient for not obtaining the
victim's medical records. The trial record demonstrates counsel was not
deficient because his cross-examination of the victim revealed she declined to
have a rape kit performed and did not tell hospital staff she was sexually
assaulted. Because defendant failed to establish a prima facie claim of
ineffective assistance of counsel, the judge did not abuse his discretion in
requiring an evidentiary hearing be held.
Affirmed.
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