SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0846- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. WILFREDO SANCHEZ, a/k/a WILFREDO SAGASTUME, Defendant-Appellant.

_________________________

Submitted December 6, 2023

– Decided January 12, 2024 Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11

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- 18 9 2. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Mark Musella, Bergen County Prosecutor, attorney fo r respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief; John J. Scaliti, Legal Assistant, on the brief). Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0846

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PER CURIAM Defendant Wilfredo Sanchez appeals from a March 20 , 2020 order denying his fir st petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant raised various claims of ineffe ctive assistance of his trial, appellate, and PCR counsel. For the reasons that f ollow, we affirm.
I. The parties are familiar with the procedural histo ry and facts of this case, and therefore, they will not be repeated in detail here. 1 A Bergen County grand jury charged defendant in nine counts of a ten coun t indictment with first-degree murder, 2C:2-6 and 2C:11-3(a)(1) and (2); second-degre e desecration of human remains, N.J.S.A. 2C:2-6 and 2C:21-1(a); second-degree di sturbing, moving, or concealing human remains, N.J.S.A. 2C:2-6 and 2C:22 -1(a); two counts of possession of a weapon, a knife, for an unlawful pu rpose, N.J.S.A. 2C:2-6 and 2C:39-4(d); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d); and two counts of thi rd -degree hindering apprehension, N.J.S.A. 2C:29- 3(b)(1) and -3(b)(4). A jury found defendant guilty on all counts.

1 The chronology is set forth in this court's unpubli shed decision affirming defendant's conviction and sentence. State v. Sanc hez, No. A- 5951 -13 (App. Div. Aug. 19, 2016). We incorporate, by reference, the facts stated in our prior opinion.3 A- 0846

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After merging certain counts, the trial court sent enced defendant to life imprisonment on the first-degree murder charge subje ct to the No Early Release Act, N.J.S.A. 2C:43-7.21; a consecutive ten-year cu stodial term on the seconddegree desecration of human remains count; a concur rent ten-year custodial term on the second-degree disturbing human remains count ; concurrent five-year custodial terms on the two third-degree counts of possess ion of a weapon for an unlawful purpose; a consecutive five-year custodial term on one count of thir ddegree hindering apprehension; and a concurrent fiv e-year custodial term on the other third-degree count of hindering apprehension. Defendant and co-defendant Pedro Garcia brutally m urdered and dismembered the victim. Detectives obtained record ed surveillance videos from two businesses and a home near the victim's apartme nt depicting defendant and Garcia carrying garbage bags during the early morni ng of the homicide. Defendant and Garcia were tried separately. Garcia testified against defendant at trial and pl aced him at the crime scene. Garcia explained how defendant grabbed the victim, pulled him, repeatedly hit him, and knocked him to the floor. The victim bled from his mouth and back. According to Garcia, defendant the n grabbed the victim by the hand, escorted him into the bathroom, and started r unning water, which the4 A- 0846

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victim said was too hot. An argument ensued, Garci a became enraged and cut the victim's neck with a knife from the kitchen apa rtment. Garcia gave defendant the knife. The victim told defendant to call an ambulance, but instead, defendant cut the victim in the stomach with a different knif e retrieved from the kitchen. As the victim begged for his life, defendant and G arcia decided to "finish him off." Garcia stabbed the victim in the neck a second time. Defendant and Garcia proceeded to dismember the victim's body, pl aced the dismembered body parts into separate garbage bags, and dumped them a t a church, a construction site, and a hardware store. The State presented co nsiderable forensic and circumstantial evidence corroborating defendant's p articipation in the homicide. Defendant , represented by counsel, filed a petition for PCR in 2019, claiming he was denied the right to effective assis tance of counsel under the Sixth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution. In his first PCR p etition, defendant alleged he received ineffective assistance of trial counsel ba sed on the following errors: (1) failure to review discovery and discuss the cas e with defendant; (2) failure

to investigate the facts of the case , interview, and call witnesses to testify at trial; and (3) failure to raise an intoxication def ense. Defendant also claimed his5 A- 0846

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appellate counsel was ineffective for failing to ra ise "all applicable legal challenges on direct appeal." On September 2, 2019, a second PCR counsel filed a letter brief in support of defendant's first PCR petition asserting trial c ounsel was ineffective in not adequately reviewing discovery with defendant, not discussing possible trial defenses, not discussing possible trial strategy th at could have impacted his decision on whether or not to testify, and failing to investigate defense witnesses. PCR counsel further contended that trial counsel wa s ineffective in not interviewing and calling four "character" witnesses : Sonia Cruz, Gladys Carbonel, Gloria Gomez, and Melissa Gonzalez to tes tify at trial. The prosecution's theory was that defendant and the vic tim were in a homosexual relationship. These individuals submitted similar statements atte sting to knowing defendant for many years, being familiar with his p ersonal life, and his "kind, polite, and non-confrontational" character. The character witnesses also stated defendant told them he was "friendly" with t he victim and Garcia. None of the witnesses believed defendant was a gay man. According to defendant, Gonzalez could have testified the victim told her s everal times prior to his death that he was involved in a romantic relationship wit h Garcia and that Garcia was6 A- 0846

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physically abusive. Gonzalez also stated the victim showed her a "purpl e bruise " he sustained when Garcia assaulted him one or two d ays ea rlier. PCR counsel averred that such testimony would have shown that Garcia was involved in a romantic relationship with the vi ctim, which gave rise to the homicide, not a relationship between defendant and the victim. PCR counsel further posited that Gonzalez's testimony would hav e supported defendant's position that Garcia threatened defendant and his family if he did not help Garcia dismember the victim's body after the murder. On January 10, 2020, the PCR court heard oral argum ent on defendant's PCR petition and reserved decision. On March 20, 2 020, the PCR court issued an order denying defendant's PCR application withou t a hearing, accompanied by a thorough written opinion. The PCR court found defendant's PCR petition was timely filed and not procedurally barred unde r Rule 3:22 -12(a)(1). The PCR court noted defendant "did not expressly state in h is verified petition that he would have elected to testify at trial" and "did no t expressly allege [trial counsel] failed to call character witnesses." However, the PCR court addressed these specific allegations as briefed by superseding PCR counsel. 2

2 The PCR court highlighted that defendant's PCR peti tion alleged trial counsel did not discuss a defense of intoxication, but PCR c ounsel did not pursue it, and the PCR court deemed that claim abandoned.7 A- 0846

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Regarding the witnesses, the PCR court found defend ant's arguments were contravened by the record. The PCR court noted onl y three people were present in the "studio" apartment when the crimes were comm itted

— defendant, Garcia, and the deceased victim. The refore, the PCR court reasoned that there we re no defense witnesses who could have "personal knowledg e" as to what occurred at the crime scene. The PCR court determined Gonzalez could not have testified the victim told her that he was in a romantic relat ionship with Garcia and Garcia was "physically abusive" under N.J.R.E. 803(c)(2), the "Excited Utterance" rule. The PCR court reasoned that Rule 803(c)(2) is an ex ception to the hearsay rule and allows a statement to be admissible if it r elates " to a startling event . .

. made while the declarant was under the stress of ex citement caused by the event . . . without the opportunity to deliberate or fabr icate." Since the purported statements were made by the victim to Gonzalez on di fferent dates when he was not under duress, the PCR court determined her testimony would have been deemed inadmissible under Rule 803(c)(2). Regarding the "purple bruise," the PCR court explai ned it would take a day or two for the skin to turn that color followin g an assault. Thus, the PCR court found when the victim made his statement abou t the purple bruise to8 A- 0846

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Gonzalez, he was no longer "under the stress of the event," would have had time to deliberate, and "this testimony would not have b een admissible." The PCR court emphasized a State witness, Nelly Torres, o ne of the three tenants living in the same apartment building where the victim lived, testified she "actually saw" Garcia physically abuse the vict im, and so the jury hear d evidence similar to what defendant now sought to in troduce. The PCR court noted Torres testified that the victim and Garcia w ere in a relationship. Therefore, the PCR court found Gonzalez's contempla ted testimony that the victim told her he was romantically involved with G arcia would have been "cumulative," and defendant did not establish "a re asonable probability" the outcome of the trial would have been different had she testified. The PCR court also noted Dora Gonzalez, the victim's sister, test ified she spoke to her brother daily, and he told her defendant was his partner, a nd that Sergeant Sean Mackay testified Garcia "admitted to him that he was the v ictim's boyfriend." The PCR court determined the four character-witness statements attesting to defendant being a homosexual had no bearing on t he outcome of the case because the trial was about "murder and accomplice liability" and not "sexual preference." Thus, the PCR court rejected defendant's argument t hat establishing he was not a homosexual would have any bearing on the outcome9 A- 0846

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of the case. The PCR court explained that the evidence clearly s howed trial counsel and defendant discussed his right to testif y on the record, and the trial court afforded defendant a "brief recess" to discus s the issue further. In addition, the PCR court noted defendant had a th ree-day weekend to "reconsider whether he would testify or not." The PCR court emphasized that defendant's PCR petition did not represent that he would have testified or how his own testimony could be used "to create a trial strategy." The PCR court concluded defendant failed to make a prima facie sh owing under the first and second Strickland 3 prongs. On August 20, 2021, defendant filed a second PCR p etition. On October 28, 2021, the PCR court conducted a hearing. Defen dant was present, represented by new counsel, and had the aid of a Sp anish interpreter. Under oath, defendant testified he never received the PCR court's March 20, 2020 order and decision denying his first PCR and therefore, n ever appealed from that decision. The PCR court accepted the excuse and pr ovided counsel the decision and order, advising defendant could appeal from the order

. The second PCR petition was denied without prejudice subject to de fendant filing an appeal from the March 20, 2020 order, which is the matter under review.

3 Strickland v. Washington, 466 U.S. 668, 687 (1984).10 A- 0846

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On appeal, defendant raises the following points f or our consideration:
POINT I
THE PCR COURT ERRED IN NOT GRANTING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM THAT, DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS DENIED THE RIGHT TO TESTIFY AT TRIA L. POINT II THE ORDER DENYING DEFENDANT'S FIRST PCR PETITION MUST BE REVERSED AND REMANDED BECAUSE THE PCR COURT DID NOT CONDUCT ORAL ARGUMENT AND FAILED TO STATE ANY REASON FOR NOT DOING SO. (Not Raised Below.)
POINT III THE PCR COURT ERRED IN FAILING TO CONSIDER DEFENDANT'S CLAIM THAT HE WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF COUNSEL'S FAILURE TO RAISE THE INTOXICATION DEFENSE. POINT IV
THE CUMULATIVE EFFECT OF THE REMAINING ARGUMENTS DESERVE EX[PL]ORATION AT AN EV IDENTIARY HEARING. In his self-authored supplemental brief, defendant raises the following two points:11 A- 0846

- 21 POINT I THE PCR COURT ERRED IN NOT CONDUCTING AN ORAL ARGUME NT IN WHICH DEFENDANT COULD ARGUE HIS LEGAL ISSUES SUCH AS INEFFECTIVE ASSISTANCE OF TRIAL AND DIRECT APPEAL COUNSELS (sic).
POINT II
THE TRIAL COURT ERRED WHEN IT DID NOTSUA SPONTE CHARGE THE JURY WITH LESSERINCLUDED OFFENSES BECAUSE THERE WAS MORE THAN AMPLE EVIDENCE TO SUPPORT THAT DEFENDANT DID NOT KILL [THE VICTIM]. We disagree with defendant's contentions and affirm

. II. In the absence of an evidentiary hearing, we review de novo the factual inferences drawn from the record by the PCR judge a s well as the judge's legal conclusions. State v. Harris, 181 N.J. 391, 421 (2004); see also State v. Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div. 20 20). We review a PCR judge's decision to deny a defendant's request for an evidentiary hearing under an abuse of discretion standard. See State v. L.G.- M. , 462 N.J. Super. 357, 365 (App. Div. 2020). A petitioner must establish entitlement to "PCR by a preponderance of the evidence." State v. O'Donnell, 435 N.J. Super. 351 , 370 (App. Div. 2014).12 A- 0846

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Additio nally, a petitioner is not automatically entitled t o an evidentiary hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy both prongs of the test set forth in S trickland, as adopted by State v. Fritz, 105 N.J. 42, 58 (1987), by a preponderanc e of the evidence. "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. This requires demonstrating that "cou nsel made errors so serious that counsel was not functioning as the 'counsel' g uaranteed the defendant by the Sixth Amendment." Ibid. The United States Constitution requires "reasonably effective assistance." Ibid. An attorney's performance will not be deemed deficient if counsel acted "within the range of com petence demanded of attorneys in criminal cases." Ibid. (quoting McMa nn v. Richardson, 397 U.S. 759, 771 (1970)). Therefore, "[w]hen a convicted d efendant complains of the ineffectiveness of counsel's assistance, the defend ant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-
88. When assessing the first Strickland prong, "[j]udic ial scrutiny of counsel's performance must be highly deferential," and "every effort [must] be made to13 A- 0846

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eliminate the distorting effects of hindsight." Id . at 689. "Merely because a trial strategy fails does not mean that counsel was ineff ective." State v. Bey, 161 N.J. 233, 251 (1999). Thus, a trial court "must in dulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "the defendant must overcome the p resumption that, under the circumstances, the challenged action [by counsel] ' might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quo ting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Further, the court must not focus on the defendant's dissatisfaction with counsel's "exercise of judgmen t during the trial . . . . while ignoring the totality of counsel's performance in t he context of the State's evidence of [the] defendant's guilt." State v. Cas tagna, 187 N.J. 293, 314 (2006). Under the second prong of the Strickland test, the defendant must show "the deficient performance prejudiced the defense." 466 U.S. at 687. This means "counsel's errors were so serious as to depri ve the defendant of a fair trial, a trial whose result is reliable." Ibid. It is in sufficient for the defendant to show the errors "had some conceivable effect on the outc ome." Id. at 693. Ultimately, "[a]n error by counsel, even if professionally unre asonable, does not warrant setting aside the judgment of a criminal proceeding if [it] had no effect on the judgment." Id. at 691.14 A- 0846

- 21 A. Here, defendant contends his trial counsel was def icient in not properly advising him as to his right to testify. Defendant avers the trial court should not have focused on whether he and his trial counsel di scussed the right to testify, but rather whether defendant understood his right. Defendant's claim is unsupported by the record. During the trial, the judge asked defendant if he had the opportunity to speak with his attorney about whether he was going to testify, and defendant responded, "yes." The trial judge then proceeded t o ask defendant whether it was his decision to testify or not to testify after reviewing all of the discovery and applicable law, and defendant responded, "not t o testify." The trial judge then proceeded to confirm that defendant's decision was voluntary, and he responded, "yes." Defendant was also questioned by the trial judge if he was satisfied with his trial counsel's explanation of t he different consequences and implications of not testifying and defendant respon ded, "yes." Defendant's claim is belied by the record, which c learly established trial counsel and defendant discussed his right to testif y. Moreover, the trial judge allowed defendant a "brief recess" to discuss the i ssue further, and the PCR court correctly pointed out defendant had a three-day wee kend to reconsider his15 A- 0846

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decision on whether to testify or not. We are unpe rsuaded by defendant's argument and are convinced the PCR court correctly determined defendant failed to sustain his burden on this issue under bo th prongs of the Strickland standard. Because trial counsel discussed defendant's right to testify with him, there was no deficient performance. And, defendant did no t state he wanted to testify in his petition. Garcia testified as to defendant' s actions in killing and dismembering the victim. Moreover, there was overw helming evidence of defendant's guilt including the surveillance video of defendant carrying garbage bags out of the apartment, which contained the vict im's body parts. Consequently, the PCR court did not err in denying defendant PCR on this claim.
B. Next, defendant argues the PCR court erred by not granting oral argument on his petition and the only hearing conducted was on October 28, 2021. Defendant is mistaken. On January 10, 2020, the PC R court heard oral argument on defendant's PCR petition during which PCR counse l presented argument.
C. Next, defendant contends his PCR counsel was ineff ective for not raising an intoxication defense in his supplemental PCR bri ef, which was raised in16 A- 0846

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defendant's pro se petition, causing the PCR court to deem the claim abandoned. Defendant is correct that he raised the intoxicatio n issue in his pro se PCR petition, that his PCR counsel failed to argue the defense in his supplemental pro se brief, and the PCR court failed to expressly address this argument in denying PCR because the PCR court considered the cl aim abandoned. The PCR court should have made findings of fact an d conclusions of law with respect to the intoxication defense because th e issue was raised before it.
R. 1:7 -4(a). However, in reviewing defendant's claims under the de novo standard of review, Harris, 181 N.J. at 419-20, and in light of the record, it is clear the intoxication claim is without merit, and it fails to establish a deficiency that would satisfy either of Strickland 's two prongs. Regarding the first Strickland prong, defendant ha s failed to show that his trial counsel's decision not to pursue an intoxicat ion defense and his PCR counsel's failure to address this issue in his supp lemental brief fell below the standard of a reasonably competent criminal defense attorneys. To successfully invoke the intoxication defense, an accused must sh ow he or she is so intoxicated that he or she did not have the intent to commit an offense. State v. Cameron , 104 N.J. 42, 54 (1986).17 A- 0846

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Defendant has failed to present prima facie eviden ce of a viable intoxication defense. Thus, trial and PCR counsel were not ineffective for failing to raise the defense. See State v. Worlock , 117 N.J. 596, 625 (1990) (holding "the failure to raise unsuccessful legal a rguments does not constitute ineffective assistance of counsel"). Defendant also failed to satisfy the second Strick land prong because he did not offer any argument in either his PCR petiti on or in his merits brief on appeal, as to how the purported error would have ch anged the outcome of the trial. Defendant only stated the contention as an error. "The defendant 'must allege facts sufficient to dem onstrate counsel's alleged substandard performance.'" State v. Jones, 219 N.J. 298, 311-12 (2014) (quoting State v. Porter, 216 N.J. 343, 355 (2013)) . Defendant provided no facts or certification to support his claim. See Cumming s, 321 N.J. Super. at 170 (explaining a PCR petition claim of ineffective ass istance of counsel must be "supported by affidavits or certifications based up on the personal knowledge of the affidavit or the person making the certificatio n"). Defendant's bare assertion does not satisfy the existing standard required by Strickland's second prong.18 A- 0846

- 21 D. Defendant argues the cumulative effect of trial co unsel's ineffectiveness in failing to call certain witnesses to testify at trial; failure to review discovery or discuss the facts of the case with him; and fail ure to discuss the intoxication defense warra nt s an evidentiary hearing. Defendant also maintains appellate counsel was ineffective and his interpreters' servi ces were deficient. We reject these arguments. As discussed, defendant has not established ineffec tive assistance of either trial or appellate counsel. The representation was not deficient, and defendant cannot demonstrate the outcome of the proceeding wo uld have been any different. The State's case was strong: the victim knew defend ant and Garcia; the murder took place in the victim's apartment; Garcia testified against defendant; and the surveillance video depicted defendant carry ing garbage bags out of the apartment. Defendant failed to carry his burden of affirmative ly proving prejudice. Therefore, the cumulative error doctrine is of no m oment. See State v. Cot to , 471 N.J. Super. 489, 547 (App. Div. 2022) (holding "even when an individual error or series of errors does not rise to reversib le error, when considered in19 A- 0846

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combination, their cumulative effect can cost suffi cient doubt on a verdict to require reversal"). Defendant's argument that appellate counsel was ine ffective is unavailing because defendant has not articulated what argument s should have been briefed on appeal, but were not. Therefore, defendant cann ot sustain this assertion.
E. In his pro se supplemental brief, defendant argues the trial judge erred when she did not sua sponte charge the jury with lesser inc luded offenses because he claims Garcia killed the victim. Defend ant also asserts that his trial counsel was ineffective for not asking the trial ju dge to include lesser-included charges on the verdict sheet because the jury had n o other option but to find him guilty of first-degree murder. It is well established that PCR proceedings are no t an opportunity to relitigate claims already decided on the merits in pr ior proceedings. State v. McQuaid, 147 N.J. 464, 483 (1997). Therefore, "[a] prior adjudication on the merits ordinarily constitutes a procedural bar to t he reassertion of the same ground as a basis for post-conviction review." Pre ciose, 129 N.J. at 476. Similarly, Rule 3:22 -5 also states, "[a] prior adjudication upon the me rits of any ground for relief is conclusive whether made in the proceedings resulting in the20 A- 0846

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conviction or in any post-conviction proceeding bro ught pursuant to this rule or prior to the adoption thereof, or in any appeal tak en from such proceedings." In our opinion on the direct appeal, we addressed defendant's arguments as to whether the trial judge erred by omitting to instruct the jury on passionprovocation manslaughter, reckless manslaughter, an d aggravated assault. We found the record lacked any evidence to support a c harge on lesser-included offenses. Sanchez, slip op. at 7-15. Since defend ant's claim does not fall under the limited purview of Rule 3:22 -5, and the issue was raised and adjudicated on his direct appeal, he is procedurally barred from r e-litigating this claim.
F. Finally, a defendant bears the burden of establish ing a prima facie claim prior to the grant of an evidentiary hearing. Stat e v. Gaitan, 209 N.J. 339, 350 (2012). A defendant is entitled to an evidentiary hearing if the facts viewed "in the light most favorable to defendant," would entit le him to PCR. State v. Marshall, 148 N.J. 89, 158 (1997) (qu oting State v. Preciose, 129 N.J. 451, 462- 63 (1992)); R. 3:22 -10(b). "If, with the facts so viewed, the PCR cla im has a reasonable probability of being meritorious, then t he defendant should ordinarily receive an evidentiary hearing in order to prove his entitlement to relief." Jones, 219 N.J. at 311. A defendant must "do more than make bald21 A- 0846

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assertions that he was denied the effective assista nce of counsel" to establish a prima facie claim entitling him to an evidentiary h earing. Cummings, 321 N.J. Super. at 170. On this record, defendant has been unable to demonstrate a hearing is warranted. Defendant's remaining arguments lack sufficient me rit to warrant any further discussion in our opinion. R. 2:11 -3(e)(2). Affirmed.