NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0304-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PABLO ANTONIO ACEVEDO, a/k/a ERIC RUIZ,
Defendant-Appellant. _______________________________
Submitted March 16, 2017 - Decided May 10, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-10-1443.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Pablo Antonio Acevedo appeals from an April 28,
2015 order denying his petition for post-conviction relief (PCR).
On appeal, defendant seeks reversal of the order, arguing:
POINT I
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY.
POINT II
TRIAL COUNSEL FAILED TO PRESENT ANY MITIGATING FACTORS AT PETITIONER'S SENTENCING.
Following our review of the record and applicable law, we affirm.
Defendant was tried before a jury along with his four co-
defendants and was convicted of second-degree conspiracy, N.J.S.A.
2C:5-2(a)(1) (count one); two counts of second-degree burglary,
N.J.S.A. 2C:18-2(a)(1) (counts two and three); two counts of first-
degree robbery, N.J.S.A. 2C:15-1(a)(1) (counts four and five);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
seven); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)
(count nine); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten).1 The jury
acquitted defendant of first-degree criminal attempt/murder,
1 Prior to trial the State dismissed these charges: third- degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eleven); and third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count twelve).
2 A-0304-15T1 N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (count six). After merger, the
judge imposed an aggregate term of imprisonment of thirty years.
Defendant's motion for a new trial was denied. On direct
appeal, this court affirmed defendant's conviction and sentence;
the Supreme Court denied certification. State v. Acevedo, No. A-
3861-07 (App. Div. Apr. 25) (slip op. at 26), certif. denied, 208
N.J. 369 (2011).
Defendant filed his petition seeking PCR on November 2, 2011,
which was heard on April 27, 2015. In a written opinion filed the
next day, the judge denied PCR. Defendant appeals from the order
filed on April 28, 2015.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
The process affords an adjudged criminal defendant a "last chance
to challenge the fairness and reliability of a criminal verdict."
State v. Nash, 212 N.J. 518, 540 (2013); see also R. 3:22-1.
"Post-conviction relief is neither a substitute for direct appeal,
R. 3:22-3, nor an opportunity to relitigate cases already decided
on the merits, R. 3:22-5." Preciose, supra, 129 N.J. at 459; see
also State v. Echols, 199 N.J. 344 (2009).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must
3 A-0304-15T1 prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof) . . . .
[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]
Strickland's two-prong test was adopted by New Jersey in State v.
Fritz, 105 N.J. 42, 58 (1987).
Defendant maintains trial counsel was ineffective as he
failed to file a motion to suppress defendant's custodial police
statement. Defendant asserts his statement was coerced, because
he was held for twelve hours without food or the right to make a
phone call. Additionally, defendant certified police told him an
officer was shot and he "better cooperate." Also, he was
threatened with physical violence when police told him no one knew
he was being held and they could make him disappear.
In order to secure PCR on this basis, defendant must
demonstrate the motion likely would have been successful, if filed.
State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not ineffective
assistance for defense counsel not to file a meritless motion.").
4 A-0304-15T1 When analyzing a defendant's claim his or her custodial
statement was coerced, we start with a review of a defendant's
waiver of his or her rights established by Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). These rights
protect a detained defendant by informing him or her regarding the
privilege against self-incrimination and the right to have counsel
present. The United States Supreme Court emphasized, "the
relinquishment of the right [to remain silent] must have been
voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion or
deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
1141, 89 L. Ed. 2d 410, 421 (1986). Any waiver of these rights
must be knowing, intelligent, and voluntary, and the State bears
the burden of demonstrating an alleged waiver has met this test.
Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d
at 706-707.
The claims of intimidation and coercion raised by defendant
were presented for the first time in his PCR motion. Defendant
was being held in New York, when Detective Jason Abadia and
investigating officers traveled from New Jersey to interview him.
Detective Abadia, who was not part of the team investigating the
crimes, but was called upon because he was fluent in Spanish,
provided the translation of Miranda rights from English to Spanish
5 A-0304-15T1 and took defendant's statement. He testified no conversation with
defendant took place prior to the use of the tape recorder, because
New Jersey law enforcement did not speak to defendant until that
time.
The trial evidence regarding defendant's custodial statement
included the audio tape between defendant and Detective Abadia,
starting with his initial conversation issuing defendant his
Miranda rights; the Miranda waiver form, written in Spanish,
initialed and signed by defendant; the audio of defendant's
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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-0304-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PABLO ANTONIO ACEVEDO, a/k/a ERIC RUIZ,
Defendant-Appellant. _______________________________
Submitted March 16, 2017 - Decided May 10, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-10-1443.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Pablo Antonio Acevedo appeals from an April 28,
2015 order denying his petition for post-conviction relief (PCR).
On appeal, defendant seeks reversal of the order, arguing:
POINT I
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY.
POINT II
TRIAL COUNSEL FAILED TO PRESENT ANY MITIGATING FACTORS AT PETITIONER'S SENTENCING.
Following our review of the record and applicable law, we affirm.
Defendant was tried before a jury along with his four co-
defendants and was convicted of second-degree conspiracy, N.J.S.A.
2C:5-2(a)(1) (count one); two counts of second-degree burglary,
N.J.S.A. 2C:18-2(a)(1) (counts two and three); two counts of first-
degree robbery, N.J.S.A. 2C:15-1(a)(1) (counts four and five);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
seven); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)
(count nine); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten).1 The jury
acquitted defendant of first-degree criminal attempt/murder,
1 Prior to trial the State dismissed these charges: third- degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eleven); and third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count twelve).
2 A-0304-15T1 N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (count six). After merger, the
judge imposed an aggregate term of imprisonment of thirty years.
Defendant's motion for a new trial was denied. On direct
appeal, this court affirmed defendant's conviction and sentence;
the Supreme Court denied certification. State v. Acevedo, No. A-
3861-07 (App. Div. Apr. 25) (slip op. at 26), certif. denied, 208
N.J. 369 (2011).
Defendant filed his petition seeking PCR on November 2, 2011,
which was heard on April 27, 2015. In a written opinion filed the
next day, the judge denied PCR. Defendant appeals from the order
filed on April 28, 2015.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
The process affords an adjudged criminal defendant a "last chance
to challenge the fairness and reliability of a criminal verdict."
State v. Nash, 212 N.J. 518, 540 (2013); see also R. 3:22-1.
"Post-conviction relief is neither a substitute for direct appeal,
R. 3:22-3, nor an opportunity to relitigate cases already decided
on the merits, R. 3:22-5." Preciose, supra, 129 N.J. at 459; see
also State v. Echols, 199 N.J. 344 (2009).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must
3 A-0304-15T1 prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof) . . . .
[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]
Strickland's two-prong test was adopted by New Jersey in State v.
Fritz, 105 N.J. 42, 58 (1987).
Defendant maintains trial counsel was ineffective as he
failed to file a motion to suppress defendant's custodial police
statement. Defendant asserts his statement was coerced, because
he was held for twelve hours without food or the right to make a
phone call. Additionally, defendant certified police told him an
officer was shot and he "better cooperate." Also, he was
threatened with physical violence when police told him no one knew
he was being held and they could make him disappear.
In order to secure PCR on this basis, defendant must
demonstrate the motion likely would have been successful, if filed.
State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not ineffective
assistance for defense counsel not to file a meritless motion.").
4 A-0304-15T1 When analyzing a defendant's claim his or her custodial
statement was coerced, we start with a review of a defendant's
waiver of his or her rights established by Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). These rights
protect a detained defendant by informing him or her regarding the
privilege against self-incrimination and the right to have counsel
present. The United States Supreme Court emphasized, "the
relinquishment of the right [to remain silent] must have been
voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion or
deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
1141, 89 L. Ed. 2d 410, 421 (1986). Any waiver of these rights
must be knowing, intelligent, and voluntary, and the State bears
the burden of demonstrating an alleged waiver has met this test.
Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d
at 706-707.
The claims of intimidation and coercion raised by defendant
were presented for the first time in his PCR motion. Defendant
was being held in New York, when Detective Jason Abadia and
investigating officers traveled from New Jersey to interview him.
Detective Abadia, who was not part of the team investigating the
crimes, but was called upon because he was fluent in Spanish,
provided the translation of Miranda rights from English to Spanish
5 A-0304-15T1 and took defendant's statement. He testified no conversation with
defendant took place prior to the use of the tape recorder, because
New Jersey law enforcement did not speak to defendant until that
time.
The trial evidence regarding defendant's custodial statement
included the audio tape between defendant and Detective Abadia,
starting with his initial conversation issuing defendant his
Miranda rights; the Miranda waiver form, written in Spanish,
initialed and signed by defendant; the audio of defendant's
confession conducted in Spanish; the written English translation
of the audio statements; testimony by Detective Abadia of the
events; and testimony by an independent bilingual transcriber, who
reviewed the English translation against the Spanish audiotape and
verified its accuracy. Acevedo, supra, slip op. at 13.
We reject as unfounded any challenge to the accuracy of the
English translation of the Spanish statements made to and by
defendant. This issue was considered on appeal when this court
examined whether the judge properly admitted the translation for
the jury's review. Ibid. We noted defendant never challenged the
accuracy of the translated statement and there was no evidence
that showed the translation was erroneous. Ibid.
Importantly, Detective Abadia stated defendant had very
limited understanding of English. For example, he testified when
6 A-0304-15T1 he used the word "burglary," defendant stopped him asking what he
meant. Detective Abadia clearly stated defendant asked him
anything that seemed confusing. Defendant's rights were issued
in Spanish, both orally and in writing, so there was no
misunderstanding. Further, defendant's conduct and statements as
demonstrated by the trial proofs show his unequivocal waiver of
his constitutional rights, after which he offered his custodial
statement. There is nothing in the record supporting a finding
defendant's decision to speak to police resulted from something
other than a voluntary and informed decision.
Therefore, not only has the accuracy of the translation that
included defendant's voluntary waiver of rights been considered
on direct appeal, making it inappropriate for review in PCR, R.
3:22-1 (barring PCR review of matters previously adjudicated), but
also, the record supports the voluntariness of defendant's
statements, making suppression based on a Miranda challenge
unlikely. For these reasons we reject defendant's claim he was
entitled to PCR because counsel failed to present his recently
related claims of coercion.
Defendant next asserts counsel was ineffective because he
failed to discuss trial strategy, allegedly did not review
discovery with him or have it translated, excluded defendant from
jury selection, where he alleges counsel did not object to
7 A-0304-15T1 exclusion of minorities, and did not interview co-defendant
Mariano Nunez, who presumably would have stated defendant was an
unwilling participant in the robbery.
We note defendant offers only broad statements of counsel's
alleged failures, and none of these accusations are explained or
supported. The PCR judge identified record citations that belie
each claim attacking counsel as unprepared or negligent in
consulting with defendant. Moreover, there is no affidavit from
Nunez reciting his possible testimony; there is no articulation
of what occurred during jury selection when a prospective juror
was stricken; and no explanation of what defendant would have done
had counsel performed services as defendant suggests. These bald
facts are insufficient to sustain a grant of PCR. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999).
In his final point, defendant argues counsel failed to present
mitigating factors during sentencing. Specifically, defendant
believed mitigating factors one (defendant's conduct neither
caused nor threatened serious harm) and two (defendant did not
contemplate his conduct would cause or threaten serious harm) were
applicable because he was only "acting as a lookout." We conclude
the arguments are meritless. R. 2:11-3(e)(2). The crime involved
an armed robbery by six co-defendants of a check cashing facility.
8 A-0304-15T1 The record shows defendant was aware of the plan and its objective.
Further, defendant confessed his role included prying open the
facility, which was equipped with police alarms. In light of all
the evidence, it is without question these claimed mitigating
factors do not apply.
Affirmed.
9 A-0304-15T1