STATE OF NEW JERSEY VS. TULIO R. MENAÂ (96-05-0724, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0521-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TULIO R. MENA,
Defendant-Appellant.
______________________________
Submitted December 20, 2016 – Decided June 8, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
96-05-0724.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Annmarie Cozzi,
Senior Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Tulio R. Mena appeals from a July 6, 2015 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. Defendant, through counsel, raises the
following issue on appeal:
POINT I
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING BECAUSE HIS TRIAL ATTORNEY WAS
INEFFECTIVE IN ENGAGING IN UNETHICAL CONDUCT
BEFORE THE JURY, CAUSING THE COURT TO ADMONISH
HIM IN THEIR PRESENCE.
In his pro se supplemental brief, defendant raises the following
issue:
POINT I
THIS MATTER SHOULD BE REMANDED TO ALLOW THE
DEFENDANT TO HAVE HIS PRO-SE ISSUES RAISED
CONCERNING THE INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL THAT DEFENDANT REQUESTED TO BE RAISED
ON HIS BEHALF BY PCR COUNSEL.
For the reasons that follow, we affirm.
In May 1996, defendant was indicted on three counts of first-
degree armed robbery, N.J.S.A. 2C:15-1, and three counts of fourth-
degree possession of an imitation firearm weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(e), as a result of gas station robberies
that occurred in 1995. However, he became a fugitive after failing
to appear for his 1997 trial. Defendant was eventually arrested
in 2008, and was later convicted by a jury in 2009 for two robberies
while armed with an imitation handgun. After remand, he was
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sentenced to an aggregate prison term of fifteen years with a
parole disqualifier of seven and one-half years.
On direct appeal, we affirmed defendant's convictions, but
reversed and remanded for resentencing. State v. Mena, No. A-
6270-08 (App. Div. June 30, 2011) (slip op. at 5).1 We detailed
the facts underlying defendant's convictions in that opinion, and
need not repeat them here. Id. at 2-3. Defendant argues, as he
did on direct appeal, that he was prejudiced by the trial judge's
critical remarks to defense counsel.
First, outside of the jury's presence, defense counsel
requested a Spanish interpreter for defendant because he had always
spoken to him in Spanish. In denying the request, the trial judge
noted that all prior proceedings had been in English without an
interpreter, and threatened to sanction counsel because he
suspected the request was a "fraud upon the court." We did not
consider this harmful because the exchange occurred outside the
presence of the jury. State v. Mena, supra, slip op. at 9 n.2.
1
Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).
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Second, defense counsel stated in his opening remarks that
defendant's purported statement to police was not defendant's
statement. Id. at 5. The trial judge expressed dismay with the
comment, asserting that it was improper for an opening statement,
but refused to allow counsel to explain himself. Ibid. The
judge further warned that he might sanction counsel if he had to
instruct him again. Ibid. We determined that the judge's comments
in the jury's presence were inappropriate. Id. at 8. We
concluded, however, that the comments did not deprive defendant
of a fair trial given the judge's final jury instructions
commending defense counsel and the prosecutor for their
professional manner and their courtesy to the court and jury, as
well as advising that any rulings he made should not be viewed as
favoring a particular side. Id. at 8-10.
Defendant filed a timely PCR petition, arguing that trial
counsel's ineffectiveness deprived him of a fair trial when the
judge criticized counsel for the unwarranted request for a Spanish
interpreter and the opening remarks concerning defendant's
purported statement. He also contended that appellate counsel was
ineffective for not raising unspecified arguments on direct
appeal.
Judge Edward A. Jerejian denied PCR relief. In his oral
decision, the judge found that defendant failed to meet the
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requirements of Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), to establish a
prima facie case of ineffective assistance of counsel. Judge
Jerejian reasoned that on defendant's direct appeal, this court
decided that the trial judge's response to counsel's request for
an interpreter was outside the presence of the jury and therefore
did not prejudice defendant. Likewise, he noted that the trial
judge's threat to sanction trial counsel was considered harmless
on appeal when we concluded that the comment did not deprive
defendant of a fair trial. Furthermore, Judge Jerejian stated
that defendant received a fair trial, and found that, even if
trial counsel was incompetent, there was no prejudice to defendant
because of the overwhelming evidence of his guilt.
In this appeal, defendant contends that he is entitled to an
evidentiary hearing because he was denied a fair trial due to the
trial judge's admonishment of trial counsel in the presence of the
jury. Specifically, defendant argues that the judge's comments
could have intimidated counsel and reduced counsel's ability to
effectively represent him for fear that counsel may upset the
judge and be sanctioned. Defendant further contends that the
judge's threats may have turned the jury against him, causing his
conviction. Defendant asserts that an evidentiary hearing is
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necessary to have trial counsel testify regarding the effects the
judge's comments had on counsel's representation of defendant.
Our examination of defendant's claims and review of the record
convinces us that defendant was not denied effective assistance
of counsel and there is no need for an evidentiary hearing. We
affirm substantially for the reasons set forth in Judge Jerejian's
well-reasoned bench decision. We add only the following brief
comments.
"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 brought pursuant
to this rule or prior to the adoption thereof, or in any appeal
taken from such proceedings." R. 3:22-5. Post-conviction relief
proceedings are not an opportunity to re-litigate claims already
decided on the merits in prior proceedings. State v. McQuaid, 147
N.J. 464, 483 (1997); R. 3:22-5. If an issue has been determined
on the merits in a prior appeal, it cannot be re-litigated in a
later appeal of the same case, even if the matter is of
constitutional dimension. McQuaid, supra, 147 N.J. at 483-84;
State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif.
denied, 133 N.J. 436 (1993). Thus, we conclude that defendant's
claims that he was prejudiced by the trial judge's comments to his
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counsel are procedurally barred by Rule 3:22-5 as they were
previously litigated.
Lastly, we address defendant's pro se arguments that PCR
counsel was ineffective for failing to raise claims that he
requested. Specifically, defendant claims that PCR counsel did
not argue that trial counsel failed to: properly assist defendant
during pre-trial plea negotiations, explain defendant's exposure
to consecutive sentences, object to jury instructions that did not
set forth the requisite elements for robbery using an imitation
gun, and object to the judge's consideration of the use of an
imitation gun as an aggravating factor at sentencing.
A defendant's constitutional right to effective assistance
of counsel extends to a PCR petition when raising ineffective
assistance of counsel claims for the first time. State v. Loftin,
191 N.J. 172, 198-99 (2007); State v. Quixal, 431 N.J. Super. 502,
513 (App. Div. 2013). Normally, we are inclined not to determine
ineffective assistance of PCR counsel on an appeal from a denial
of an initial PCR petition for the same reason as on direct appeal,
because both circumstances involve "allegations and evidence that
lie outside the trial record." State v. Preciose, 129 N.J. 451,
460 (1992)(citations omitted). We see no such obstacle in this
case, given the lack of substance to defendant's claim.
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In light of the record and applicable legal principles, we
conclude that defendant's pro se arguments are without sufficient
merit to warrant a discussion in a written opinion. R. 2:11-
3(e)(2). Defendant's bald assertions did not establish a prima
facie case of ineffective assistance of counsel, and did not
warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Additionally, as the PCR judge determined, there was ample evidence
of defendant's guilt.
Affirmed.
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