NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0635-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CATELIN HICHOS, a/k/a CATELIN D. PEREZ- CARSTARPHEN,
Defendant-Appellant. ________________________
Submitted December 18, 2023 — Decided December 26, 2023
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-11-1425.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Patrick Ryan McAvaddy, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Catelin Hichos appeals from a September 15, 2022 order
denying her petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Defendant dated Kevin Argueta. On July 29, 2016, defendant and Argueta
attended a party where they both consumed a lot of alcohol and took drugs. They
returned to Argueta's home early the next morning with their friend, Giovanny
Garcia. Garcia took his phone, which he had left at Argueta's home, and
departed. Defendant and Argueta went to Argueta's room. There, defendant
used cocaine and Argueta smoked marijuana.
At some point, defendant and Argueta had sex. Defendant described it as
"really rough" because Argueta was continuously grabbing and smacking her.
She told Argueta to stop but he refused. Defendant claimed she grabbed a knife
she found on the floor of Argueta's bedroom to defend herself and stabbed
Argueta four times with it. She also said that at some point she went to the
bathroom, checked Argueta's phone, and discovered he was cheating on her.
Following the stabbing, defendant wrapped the knife in a newspaper, took
it and her belongings, and left Argueta's home. She called her friend, Katherine
Calderon. Calderon told police defendant was hysterically crying when she
called and said she thought she had hurt Argueta. Defendant spent the rest of
A-0635-22 2 the day sleeping at Calderon's home. When Calderon returned from work, they
walked to the Hudson River, and defendant discarded the knife in the river.
Calderon told police defendant said she went into Argueta's bathroom
during the night and went through his phone. Defendant became upset and
smashed Argueta's phone when she discovered messages between him and other
women and videos of Argueta being intimate with other women. She then
returned to the bedroom, woke Argueta up, and confronted him about the
messages and videos on his phone. Dissatisfied with Argueta's answers,
defendant began stabbing him. Calderon convinced defendant to turn herself
into the police.
While defendant was at Calderon's house, Argueta's mother discovered
her son's body on the floor in his room. When police arrived, they discovered a
used condom and a broken cell phone in the room, both with blood stains on
them. There was also blood on the door leading into Argueta's room and on the
floor outside the room, near a dining table. While police were at the scene,
defendant arrived at the police station and told officers "she had knowledge of
the incident and wanted to confess."
A-0635-22 3 Argueta's brother denied there was a knife in Argueta's bedroom. He told
police there was a collection of knives in the kitchen, and a knife was missing.
He noticed it was missing "because it was a knife that was frequently used."
Defendant was charged with: aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and hindering
apprehension, N.J.S.A. 2C:39-3(b)(1). Pursuant to a plea agreement, defendant
pled guilty to aggravated manslaughter. The State would seek a prison sentence
of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and five years of parole supervision. The defense would be free to argue
for a ten-year sentence subject to NERA.
Prior to sentencing, defense counsel filed a memorandum detailing
defendant's background and accomplishments. In addition to attaching thirty
character letters, the memorandum recounted in detail how defendant's uncle
had sexually abused her as a child. The uncle pled guilty to first -degree
aggravated sexual assault. The memorandum also explained defendant's ex-
husband "was charged with [a]ggravated [a]ssault, [w]eapons [o]ffenses[,] and
[t]erroristic [t]hreats for grabbing [her] by the throat and holding a knife to her
throat as she lay helplessly on the floor." At the sentencing hearing, defense
A-0635-22 4 counsel argued defendant suffered from anxiety, depression, and post-traumatic
stress disorder because of these incidents.
Defense counsel argued the incident with Argueta was the latest in a series
of abuse she suffered at the hands of men. Counsel pointed out defendant had
bruises on her body, which were indicative of "some very rough sexual
intercourse" with Argueta, albeit consensual. Although defendant was not
claiming self-defense, counsel argued the only way to reconcile defendant's
otherwise peaceful, law-abiding life with Argueta's stabbing was for the court
to conclude defendant "snap[ped]" when she killed Argueta.
The defense urged the judge to find mitigating factors three, four, five,
seven, eight, nine, and ten, and aggravating factor nine. Defense counsel also
asserted defendant was remorseful.
During her allocution, defendant described her relationship with Argueta
as "one of deep passion, jealousy, and physical abuse." She noted Argueta
"didn't hit . . . and punch [her] in a general way, rather he was abusive to [her]
during sex." She claimed Argueta "enjoyed[] tormenting [her], often giving
[her] flashbacks of the sex abuse [she] endured as a child." She "often had a
hard time standing up for [herself], especially to men." Defendant said:
I stabbed [Argueta] out of rage and jealousy as he was playing with my emotions and dealing with other
A-0635-22 5 women. I'm not sure what overcame me. My uncle did horrible things to me and I was unable to react. My ex- husband beating me and I never reacted. Something overcame me this night and my life came pouring out.
The judge rejected the defense's narrative. He noted defendant claimed
she was abused and was unable to walk away, "[y]et[] after she relentles sly
stabbed . . . Argueta she had no difficulty collecting her belongings and simply
walking out." He found the stabbing "wasn't a response to abuse. [Defendant's]
actions in this case were fueled by anger and jealousy, not abuse." He concluded
it was clear the sex was consensual and after it ended, defendant took Argueta's
phone, became angry, and stabbed Argueta. The judge rejected the assertion the
knife was in the bedroom, and concluded the evidence supported that it was in
the kitchen. The judge concluded defendant likely retrieved the knife and
stabbed Argueta while he was in bed, stating "I don't know if . . . Argueta was
asleep, but he certainly wasn't attacking" defendant. Rather than call police,
defendant left the home, leaving Argueta in his room dying, while his mother
was in the house and "[h]elp, literally, was a room away." Defendant "took the
knife . . . changed clothes and said nothing, called nobody to help [Argueta],
despite the fact [defendant] knew he laid dying in his family's home . . . ."
The judge acknowledged there was "no doubt" defendant "had a difficult
upbringing" and had been abused by her uncle and ex-husband, "[b]ut that's not
A-0635-22 6 what happened here." Defendant assigned blame to Argueta and her remorse
did not seem genuine. He emphasized, "[s]imply to say I'm sorry is not
remorseful. There has to be a deep appreciation for the wrongfulness of one's
conduct to be remorseful." The judge found aggravating factors one and nine
"preponderate in weight over" mitigating factor seven, and sentenced defendant
in accordance with the State's request for fifteen years' imprisonment subject to
NERA and five years of parole supervision.
Defendant filed a pro se PCR petition, and in part, argued her sentence
should be reconsidered because defense counsel was ineffective for not seeking
mitigating factor twelve, N.J.S.A. 2C:44-(1)(b)(12), due to defendant's
cooperation with law enforcement by confessing to the crime. PCR counsel
filed a supplemental brief, which alleged defense counsel "was ineffective for
failing to provide the court with an expert opinion regarding defendant's medical
condition in support of mitigating factors[]" three, four, eight, and nine. PCR
counsel asserted an expert report should have been provided to show defendant
"suffered from Battered Women's Syndrome [(BWS)]." Counsel asserted
defendant's case was like State v. Hess, 207 N.J. 123 (2009), which found
defense counsel ineffective for not arguing any mitigating factors or presenting
evidence of BWS at sentencing.
A-0635-22 7 Defendant's petition attached a report by a psychologist, which opined
defendant "was in a domestic violence situation perpetrated by [Argueta]. She
was his victim; he was controlling her[,] and she feared for her life due to the
episodes of battering she endured at his hands." The expert concluded
defendant's relationship with Argueta "was significant for intimate partner
violence in which she was the victim of battering, emotional abuse, coercion and
control." He opined defendant "suffered from the effects of intimate partner
violence, which include her belief and feeling that the perpetrator of intimate
partner violence had power and control over her before, during and around the
instant matter she was indicted for." Defendant "was experiencing depression,
remorse, guilt and loss before, during or around the time she made a plea to
avoid trial."
The PCR judge, who also took defendant's plea and sentenced her, issued
a written opinion denying the petition without an evidentiary hearing. The judge
distinguished Hess, noting defense counsel here "submitted a detailed pre-
sentence memorandum and substantially argued . . . to take into consideration
[defendant's] past abuse, particularly her uncle and former husband." Further,
defense counsel "asserted the same mental issues at sentencing, which [the
expert] discussed in his report made after [defendant's] sentencing . . . ." The
A-0635-22 8 judge "was fully aware of [defendant's] past abuse and after reviewing the facts
of [the] case in their entirety, concluded as [defendant] herself admitted on the
record, that she stabbed . . . Argueta 'out of jealous[y] and rage.'"
Therefore, the judge concluded defendant failed to show a prima facie
case of ineffective assistance of counsel since defense counsel "adequately
argued [for the court] to consider and impose a lower sentence because of
[defendant's] past abuse." The judge characterized defense counsel's argument
as "detailed and extensive" and the expert report "contain[ed] no new
information that would have impacted the sentence imposed." The lack of an
expert report at sentencing did not prejudice defendant because the court
considered and "rejected [defendant's] assertion that her past abuse caused her
actions in stabbing . . . Argueta. . . . Moreover, the expert testimony [defendant]
sought at sentencing would not have negated her own statement that she
killed . . . Argueta 'out of jealous[y] and rage.'" The judge concluded
defendant's "lack of satisfaction with the result rests in this [c]ourt's rejection of
counsel's argument, not counsel's failure to adequately assert [BWS] at
sentencing[,]" as was the case in Hess.
The judge also rejected the claim defense counsel was ineffective for not
arguing mitigating factor twelve. Citing State v. Read, 397 N.J. Super. 598, 613
A-0635-22 9 (App. Div. 2008), the judge found defendant's "cooperation with law
enforcement [did] not constitute a proper application of mitigating factor
twelve[]" because her "confession and subsequent statement to police . . . [were ]
of limited benefit to the State." Defendant "was the only perpetrator of the crime
and her confession did not assist in solving another crime."
Defendant raises the following points on appeal:
POINT I [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIM THAT HER TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO SEEK EXPERT TESTIMONY THAT SHE SUFFERED FROM [BWS].
POINT II AN EVIDENTIARY HEARING IS REQUIRED BECAUSE THE COURT REFUSED TO FIND THAT TRIAL COUNSEL HAD BEEN INEFFECTIVE IN FAILING TO ARGUE AT SENTENCING THAT MITIGATING FACTOR TWELVE SHOULD HAVE BEEN APPLIED.
I.
Ineffective assistance of counsel claims must satisfy the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by
our Supreme Court in State v. Fritz, 105 N.J. 42, 57-58 (1987). Strickland
requires a petitioner show: (1) the particular way counsel's performance was
deficient, and (2) that the deficiency prejudiced their right to a fair trial. 466
A-0635-22 10 U.S. at 687; Fritz, 105 N.J. at 58. Claims of ineffective assistance of counsel in
the plea bargain context are also reviewed under the Strickland test. Missouri
v. Frye, 566 U.S. 134, 140 (2012).
"[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Counsel's errors "even if professionally
unreasonable" will not require setting aside a judgment if they had no effect on
the judgment. Strickland, 466 U.S. at 691.
"[W]here the [PCR] court does not hold an evidentiary hearing, we may
exercise de novo review over the factual inferences the trial court has drawn
from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373
(App. Div. 2014). We also review a PCR court's legal conclusions de novo.
State v. Harris, 181 N.J. 391, 416 (2004).
II.
In Point I of her brief, defendant asserts the PCR judge erred when he
determined it was sufficient for defense counsel to present information about
defendant's history of abuse without expert testimony. She notes in State v.
Kelly, our Supreme Court held expert testimony was necessary to assist lay
jurors to understand BWS. 97 N.J. 178, 209 (1984). Defendant claims the
A-0635-22 11 judge's explanation of her behavior exemplifies his misunderstanding of BWS.
For instance, when the judge found defendant's "actions in this case were fueled
by anger and jealousy, not abuse" he made the same error a lay person would
make that could have been corrected by testimony of an expert witness.
Defendant claims an evidentiary hearing was necessary because the
judge's misconceptions about the abuse she suffered showed he was biased and
lacked objectivity. She notes the judge's remark—that she should have walked
away rather than stab Argueta—ignored our holding in State v. Frost, 242 N.J.
Super. 601, 611 (App. Div. 1990), where we held battered women cannot easily
walk away from an abusive relationship and can be emotionally dependent on,
or in a "love-hate relationship" with, the abuser. She claims the judge did not
understand BWS because he oversimplified the relationship with Argueta as one
involving infidelity while ignoring the physical abuse.
Defendant argues the judge heavily relied on defendant's own description
of her conduct as resulting from a jealous rage rather than considering the
learned opinion of an expert. She asserts Hess clearly applied because she
suffered from abuse over the course of her entire life and her "mental state had
been impacted by the abuse . . . resulting [in] disruption of her ability to tolerate
A-0635-22 12 the actions that triggered her criminal conduct." Defendant urges us to remand
for an evidentiary hearing before a different judge.
In order to conclude defense counsel was ineffective for failing to adduce
expert testimony on BWS at sentencing we must be convinced that counsel's
performance was "professionally unreasonable . . . ." Strickland, 466 U.S. at
691. In general, "[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise." N.J.R.E.
702 (emphasis added). As we have highlighted, N.J.R.E. 702 is permissive.
Contrary to defendant's argument, Kelly does not mandate expert
testimony on BWS. There, the Court stated
a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.
[Kelly, 97 N.J. at 209.]
We are unconvinced the PCR judge did not understand the relevance of
BWS here. The judge explained in detail why the record did not support a
finding BWS played a dispositive role in defendant's sentence.
A-0635-22 13 We also part ways with defendant's interpretation of Hess. There, the
Court found BWS evidence would have supported the same mitigating factors
defendant argued at sentencing, but that case does not mandate BWS evidence
to support the mitigating factors if evidence of the abuse was otherwise
presented. Hess's defense counsel failed to argue any mitigating factors. Hess,
207 N.J. at 140. The Court found counsel's representation fell so far below
professional standards as to deprive Hess of her constitutional right to
representation. Id. at 149. Here, defense counsel made no such errors. As we
and the PCR judge have noted, defense counsel filed a detailed pre-sentencing
memorandum and vigorously argued defendant's history of abuse in mitigation
of the sentence. Having reviewed the expert report, we are in accord with the
PCR judge's finding it added nothing new to the sentencing considerations.
BWS "describes a collection of common behavioral and psychological
characteristics exhibited in women who repeatedly are physically and
emotionally abused over a prolonged length of time by the dominant male figure
in their lives." State v. B.H., 183 N.J. 171, 182-83 (2005) (citing Lenore E.A.
Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J. L.
Ethics & Pub. Pol'y 321, 326-27 (1992)). Although BWS is not listed as a
diagnosis in the Diagnostic and Statistical Manual of Mental Disorders, over
A-0635-22 14 time, it "has become widely accepted as admissible evidence in self-defense
cases." Id. at 182-83. The Tenth Circuit has found defense counsel ineffective
where self-defense was raised at trial, but counsel failed to ask the expert
psychiatrist about BWS, despite offering extensive lay witness testimony about
the defendant's fear, history of abuse, and even post-traumatic stress disorder.
Paine v. Massie, 339 F.3d 1194, 1197 (10th Cir. 2003). The court ruled BWS
expert testimony was necessary to understand "the ramifications of BWS on the
reasonableness of [the defendant's] fear" which was an essential element of self-
defense. Ibid.
Here, expert testimony was not required because defendant waived a self-
defense claim. Moreover, having considered the facts in light of the sentencing
decision, we are unconvinced expert testimony on BWS would have led the
judge to find different aggravating or mitigating factors, or meaningfully altered
the weight assigned to the factors found by the judge. The judge's findings
reflect that he understood what defendant was attempting to argue about the
effects of BWS. However, the facts and defendant's actions stood in stark
contrast to the claim BWS impelled her to kill Argueta.
A-0635-22 15 Defense counsel's representation at the sentencing was not
constitutionally deficient. And the failure to present expert BWS evidence did
not prejudice defendant because it would not have changed the outcome.
III.
In Point II, defendant alleges her counsel was ineffective for failing to
argue mitigating factor twelve. She asserts her surrender avoided law
enforcement having to "expend time and manpower in searching for her."
Although she discarded the knife in the river, her confession "obviated the need
of the police to conduct a further search for it." Defendant argues the PCR
judge's reliance on Read was misplaced because there, the defendant was already
apprehended by police when he confessed. 397 N.J. Super. at 603.
In Read, we stated:
[W]e question whether a confession qualifies as "cooperation" [for purposes of applying mitigating factor twelve], at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes . . . . [D]efendant's confession was not entitled to any substantial weight in determining his sentence in view of its limited benefit to the State.
[Id. at 613.]
We are unconvinced defense counsel's failure to argue mitigating factor
twelve constituted ineffective assistance of counsel. Defendant's confession was
A-0635-22 16 of limited benefit to the State because it did not help law enforcement identify
other perpetrators or solve other crimes.
Moreover, our de novo review of the record does not convince us
Argueta's death would not have been solved without the confession. The
evidence showed defendant and Argueta would have been placed at the scene
by Garcia, who returned with them to Argueta's home following the party.
Police had other evidence defendant was with Argueta, in the form of the used
condom and smashed phone discovered at the scene. Calderon also provided
information to police regarding defendant's statement, namely, her admission
that she "hurt" Argueta, and Calderon witnessed defendant dispose of the knife.
Under these circumstances, mitigating factor twelve did not apply.
Affirmed.
A-0635-22 17