STATE OF NEW JERSEY VS. FRANCIS J. PRETO (11-05-0884 AND 08-10-1541, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1393-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCIS J. PRETO,
Defendant-Appellant.
__________________________
Submitted February 24, 2020 – Decided June 10, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment Nos. 11-05-0884
and 08-10-1541.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew Robert Burroughs, Designated
Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; William Kyle Meighan,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Francis Preto, appeals from the denial of his petition for post -
conviction relief (PCR). In 2012, he was convicted at trial for conspiring and
attempting to kill his wife and for conspiring to kill a fellow county jail inmate
who had reported the murder plot to authorities. Defendant contends his trial
counsel rendered ineffective assistance by not calling certain witnesses, by not
effectively cross-examining his wife, and by not communicating with him about
the case before trial.
After reviewing the record in light of the applicable legal principles, we
reject defendant's contentions and affirm the denial of his PCR petition
substantially for the reasons set forth by Judge Guy Ryan in a thorough and well-
reasoned thirty-two-page opinion. As the PCR court aptly noted, defendant
failed to support his contentions with competent proofs that would warrant an
evidentiary hearing, much less a new trial. We conclude that defendant has not
established that his trial counsel's performance was constitutionally deficient or
that any potential ineffective assistance had a reasonable probability of changing
the jury verdict. See generally Strickland v. Washington, 466 U.S. 668 (1984)
(establishing a two-part test for addressing ineffective assistance of counsel
claims).
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I.
Defendant was initially tried in early 2011. The first trial resulted in a
hung jury and mistrial. When he was retried in the fall of 2012, he was
represented by a different attorney than the one who represented him at the first
trial. This time, the jury found defendant guilty of first-degree conspiracy to
murder his wife, first-degree attempted murder of his wife, and first-degree
conspiracy to murder Timothy Milton. The jury acquitted defendant of
attempting to murder Milton. Defendant was sentenced to an aggregate term of
16 years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This
sentence runs consecutively to the sentence imposed on an unrelated prior
conviction.
On direct appeal, we affirmed the trial convictions but remanded the
matter to correct the calculation of gap-time and jail credits. State v. Preto, No.
A-4212-12 (App. Div. July 8, 2016) (slip op. at 16). The Supreme Court denied
certification. State v. Preto, 228 N.J. 483 (2017).
Defendant thereafter filed a pro se petition for post-conviction relief.
Judge Ryan heard oral argument and thereafter issued a written opinion denying
defendant's PCR petition without an evidentiary hearing. Defendant now
appeals from that decision.
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II.
The facts adduced by the State at trial are recounted in our prior opinion
and need not be repeated at length in this opinion. It is sufficient to note that
the State presented testimony and electronically recorded conversations to prove
that defendant conspired and attempted to murder both his ex-wife and a fellow
inmate at the Ocean County Jail, Milton. While in jail, defendant sought
Milton's assistance in a plot to murder Ms. Preto before she could divorce
defendant. When defendant learned that Milton reported the murder plot to the
authorities, he attempted to hire other individuals to kill Milton. The defense
argued that defendant's threats were mere puffery and were made in response to
a jailhouse culture that required him to act tough.
III.
Defendant presents the following contentions for our consideration: 1
POINT I
AS DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL, HE WAS ENTITLED
TO POST-CONVICTION RELIEF.
(1) Trial counsel failed to ensure the
exculpatory testimony of Harry Reilly.
1
Defendant made several other arguments before the PCR court that he does
not raise on this appeal.
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(2) Trial counsel's failure to effectively
communicate with her client prejudiced his
right to effective legal representation.
(3) Trial counsel failed to effectively cross-
examine defendant's wife.
(4) Trial counsel failed to present the
exculpatory testimony of Joseph Collins
(aka "Joe Green").
(5) Trial counsel's cumulative errors
denied her client effective legal
representation.
POINT II
AS THERE ARE GENUINE ISSUES OF MATERIAL
FACTS IN DISPUTE, AN EVIDENTIARY HEARING
WAS REQUIRED.
IV.
We begin our analysis by acknowledging the legal principles that govern
this appeal. Post-conviction relief serves the same function as a federal writ of
habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). A petitioner must
establish grounds for relief by a preponderance of the evidence. State v.
Mitchell, 126 N.J. 565, 579 (1992) (citing State v. Marshall, 244 N.J. Super. 60,
69 (Law Div. 1990)). To satisfy this burden, the petitioner must allege specific
facts, "which, if believed, would provide the court with an adequate basis on
which to rest its decision." Ibid.
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Defendant claims his trial counsel rendered constitutionally deficient
representation. Both the Sixth Amendment of the United States Constitution
and Article 1, paragraph 10 of the New Jersey Constitution guarantee the right
to effective assistance of counsel at all stages of criminal proceedings.
Strickland, 466 U.S. at 686 (citing McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish an ineffective
assistance claim, a defendant must meet the two-part test articulated in
Strickland. Fritz, 105 N.J. at 58. "First, the defendant must show that counsel's
performance was deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
To satisfy the first prong of the Strickland test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687.
Reviewing courts indulge in a "strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id. at 689. The
fact that a trial strategy fails to obtain for a defendant the optimal outcome is
insufficient to show that counsel was ineffective. State v. DiFrisco, 174 N.J.
195, 220 (2002) (citing State v. Bey, 161 N.J. 233, 251 (1999)).
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The second prong of the Strickland test requires the defendant to show
"that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,
counsel's errors must create a "reasonable probability" that the outcome of the
proceedings would have been different than if counsel had not made the errors.
Id. at 694. This prong is particularly demanding. "The error committed must
be so serious as to undermine the court's confidence in the jury's verdict or the
result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v.
Castagna, 187 N.J. 293, 315 (2006)).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record in connection with
his or her ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR
court should grant an evidentiary hearing when a defendant is able to prove a
prima facie case of ineffective assistance of counsel, there are material issues of
disputed fact that must be resolved with evidence outside of the record, and the
hearing is necessary to resolve the claims for relief. R. 3:22-10(b). To meet the
burden of proving a prima facie case, a defendant must show a reasonable
likelihood of success under the Strickland test. Preciose, 129 N.J. at 463.
"[C]ourts should view the facts in the light most favorable to a defendant to
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determine whether a defendant has established a prima facie claim." Id. at 462–
63.
Importantly for purposes of this appeal, "[i]n order to establish a prima
facie claim, a petitioner must do more than make bald assertions that [he or she]
was denied the effective assistance of counsel." State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). The petitioner must allege specific facts
sufficient to support a prima facie claim. Id. at 168 (citing Mitchell, 126 N.J. at
589). Furthermore, the petitioner must present these facts in the form of
admissible evidence. In other words, the relevant facts must be shown through
"affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification." Id. at 170; see also R. 3:22-10(c) ("Any
factual assertion that provides the predicate for a claim of relief must be made
by an affidavit or certification . . . and based upon personal knowledge of t he
declarant before the court may grant an evidentiary hearing.").
As a general proposition, we defer to a PCR court's factual findings "when
supported by adequate, substantial and credible evidence." State v. Harris, 181
N.J. 391, 415 (2004) (quoting Toll Bros v. Twp. of W. Windsor, 173 N.J. 502,
549 (2002)). However, when the trial court does not hold an evidentiary hearing,
we "may exercise de novo review over the factual inferences drawn from the
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documentary record." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284,
291 n.4 (3d Cir. 1991)). Similarly, we review de novo the PCR court's legal
conclusions. State v. Nash, 212 N.J. 518, 540–41 (2013) (citing Harris, 181 N.J.
at 415–16).
V.
A.
Defendant argues his trial counsel was ineffective for failing to call Harry
Reilly as a witness. Defendant claims Reilly would have provided testimony
supporting defendant's theory that he was merely "talking tough" when he was
discussing murdering his wife and Milton. Additionally, defendant argues
Reilly would have testified that the conspiracy between himself, defendant, and
Milton was to steal "WaveRunners" 2 from Ms. Preto, not to kill her.
While Reilly was on defendant's witness list, counsel and the trial court
were unable to locate Reilly during trial after corresponding with the Ocean
County Jail and the probation department. Defendant contends his trial counsel
should have pursued Reilly's whereabouts more aggressively. We note that
2
"WaveRunner" is a trademarked name for a type of personal watercraft
produced by Yamaha Motor Corporation.
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defendant was unable to locate Reilly while preparing his PCR and
acknowledges he does not even know if Reilly is still alive.
We reject defendant's PCR claim as nothing more than a "bald
assertion[]." Cummings, 321 N.J. Super. at 170. As we have noted, a defendant
must support the factual assertions with competent proofs, i.e., "affidavit[s] or
certification[s] pursuant to Rule 1:4-4 and based upon personal knowledge of
the declarant." R. 3:22-10(c). Here, defendant failed to supply an affidavit or
certification made by himself, his first trial attorney, or Reilly summarizing the
testimony Reilly would have provided had he been called as a witness.
Defendant's explanation at oral argument is not comparable to an affidavit
or certification pursuant to Rule 1:4-4. Certifications or affidavits submitted
pursuant to Rule 1:4-4(b) subject the declarant to punishment if their statements
are willfully false. Defendant was not under oath when he spoke to the court
concerning Reilly's potential testimony. Accordingly, the PCR court correctly
determined that defendant's contentions concerning Reilly are unsupported in
the record. Additionally, Judge Ryan found it unlikely Reilly could have
provided testimony supporting defendant's "talking tough" defense because the
trial court had precluded defendant from calling other witnesses to provide
similar testimony and that decision was affirmed on direct appeal.
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Even putting aside that defendant's arguments with respect to Reilly are
bald assertions, defendant's own electronically recorded statements would have
contradicted Reilly's hypothesized testimony. In a jailhouse conversation
recorded on July 2, 2008, for example, defendant and Milton discussed the
details of the plan to kill Ms. Preto, including Milton's payment for killing Ms.
Preto and the logistics of dumping her body. Defendant told Milton he would
pay $10,000 for Milton "to take her out." At no point in any of the recorded
conversations between defendant and Milton does anyone refer to a scheme to
steal personal watercraft.
We add that in order to succeed on an ineffective assistance claim based
on trial counsel's failure to call a witness; a defendant must "overcome the
presumption that, under the circumstances," the failure to call the witness "might
be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005)
(quoting Strickland, 466 U.S. at 689). Determining which witnesses to call to
the stand is an "an art." Id. at 321 (quoting Strickland, 466 U.S. at 693).
A trial attorney must consider what testimony a witness
can be expected to give, whether the witness's
testimony will be subject to effective impeachment by
prior inconsistent statements or other means, whether
the witness is likely to contradict the testimony of other
witnesses the attorney intends to present and thereby
undermine their credibility, whether the trier of fact is
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likely to find the witness credible, and a variety of other
tangible and intangible factors.
[Id. at 320–21.]
Given the difficulty inherent in selecting witnesses, a court's review of counsel's
decision must be "highly deferential." Id. at 321 (quoting Strickland, 466 U.S.
at 689).
In this instance, in exercising her professional judgment, defendant's trial
counsel was permitted, if not obligated, to consider the credibility of Reilly's
testimony in light of the other evidence presented at trial. Id. at 320–21.
Defendant explained at oral argument that in preparing for defendant's second
trial, his second trial counsel read all the materials supplied by defendant's first
trial counsel. Counsel's decision to not make further effort to locate and
subpoena Reilly was thus made with an understanding that Reilly would have
provided testimony contradicted by defendant's own admissions, reducing
Reilly's credibility and the value of his testimony. Ibid. In these circumstances,
we agree with the PCR court that defendant has provided no basis for concluding
that counsel's performance with respect to this potential witness was
unreasonable or otherwise constitutionally deficient.
Relatedly, in assessing the potential impact of an absent witness, we must
consider the defendant's overall trial strategy. See State v. L.A., 433 N.J. Super.
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1, 16 (App. Div. 2013) (noting that the importance of an absent witness must be
judged in light of the "interplay of the uncalled witness[] with the actual defense
witnesses called" (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir.
1996))). Throughout trial, defendant argued his threats were puffery and the
product of the "talking tough" culture in the jail. Potential testimony from
Reilly that defendant was planning to steal personal watercraft from his ex-wife
would not have supported defendant's "talking tough" theory and could have
distracted the jury from counsel's principal defense strategy.
In sum, given the uncertainty concerning Reilly's testimony, as well as
Reilly's criminal record and history of drug addiction, we agree with the PCR
court's conclusion that it was reasonable that counsel did not further pursue
Reilly's whereabouts.
B.
Defendant next asserts that his trial counsel was ineffective for failing to
call Joseph Collins as a witness. Defendant claims Collins was familiar with
defendant's case and could have provided helpful testimony. Collins, who is
reputed to be an upper echelon gang member, testified in a Rule 104 hearing
after which defendant and trial counsel agreed not to call him as a witness at
trial. Defendant now contends his counsel rendered ineffective assistance by
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talking him out of calling Collins as a witness. Specifically, defendant contends
that Collins's gang affiliation should not have been a sufficient reason for
counsel to convince defendant to not have Collins testify.
As we have noted, a PCR court's review of counsel's decision not to call
a witness is "highly deferential." Arthur, 184 N.J. at 321 (quoting Strickland,
466 U.S. at 689). Applying that deferential standard, we agree with Judge
Ryan's conclusion that trial counsel was not ineffective in determining not to
call Collins as a trial witness. Judge Ryan aptly noted that Collins's testimony
was likely in the same vein as other inadmissible testimony relating to
defendant's "talking tough" defense. Although Collins may have been able to
provide some admissible testimony concerning his encounters with defendant
while they were both in prison, the PCR court appropriately deferred to trial
counsel's strategic decision not to call Collins as a witness.
We conclude it was hardly unreasonable for trial counsel to determine that
it was in her client's interest to avoid calling a witness with a gang affiliation 3
and whose testimony would alert the jury that defendant had previously served
3
We note that defendant asserts that Collins's status as an "upper echelon" gang
member somehow would have increased his credibility.
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time in State Prison. Accordingly, the PCR court properly refused to second
guess trial counsel.
Furthermore, we hold it is not reasonably probable that Collins's testimony
would have changed the jury's determination that defendant conspired to murder
Milton. Strickland, 466 U.S. at 694. It bears emphasis that the State played for
the jury a recorded conversation in which defendant arranged to have Maurice
Pearce murder Milton. During the recorded conversation with Pearce, defendant
told Pearce he could supply him with a gun. The two men discussed the different
guns Pearce could use. Defendant concluded that Pearce could use a lower
caliber gun so long as he "finish[ed] [Milton] off, two to the head." They also
discussed the clothes Pearce would wear, that Pearce should wear two gloves
during the killing, and how he would leave the scene after killing Milton.
Defendant provided Pearce with both Milton's address and his father's contact
information, including his street address and telephone number. Collins's
testimony would not have undermined the incriminating value of this recorded
conversation in any material manner.
C.
Defendant next contends his trial counsel was ineffective for failing to
communicate with him prior to trial. Defendant claims that he had only two or
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three conversations with an investigator acting on counsel's behalf. Defendant
hypothesizes that additional communication before trial would have provi ded
the "extra push necessary to win an acquittal."
As with his claim concerning Reilly's testimony, defendant has failed to
support this ineffective assistance claim with the necessary competent proofs.
Defendant has not submitted an affidavit or certification establishing the extent
to which counsel and defendant communicated prior to trial and establishing that
additional preparation would have affected the outcome of the trial. Defendant's
claim that counsel failed to communicate with him prior to trial, therefore, is yet
another "bald assertion[]" unsupported by the record. Cummings, 321 N.J.
Super. at 170. Furthermore, as the PCR court noted, defendant never raised to
the trial judge any concern with having insufficient time to prepare with his
attorney regarding any aspect of his trial strategy. We therefore agree with the
PCR court that defendant has failed to establish either prong of the
Strickland/Fritz test with respect to his pretrial interactions with defense counsel
and her trial preparation.
D.
We turn next to defendant's contention that his trial counsel was
ineffective in the manner in which she cross-examined his wife. Defendant
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acknowledges that counsel extensively cross-examined his wife concerning their
personal history and her potential bias in view of the divorce proceedings.
Defendant nonetheless claims counsel should have used the cross-examination
to put his marriage in a more positive light by eliciting testimony that he was a
"good husband." The PCR court found this argument to be absurd given that
defendant was on trial for attempting to murder his wife. We agree.
Like his other ineffective assistance claims, defendant's supposition that
his wife would have provided positive testimony concerning their relationship
is a "bald assertion[]" unsupported in the record. Cummings, 321 N.J. Super. at
170. Defendant failed to supply an affidavit or certification in compliance with
Rule 3:22-10(c) detailing the potential testimony his wife may have given
concerning their marriage.
Additionally, defendant has utterly failed to overcome the strong
presumption that counsel's approach to cross-examining his wife was a "sound
trial strategy." Strickland, 466 U.S. at 689. The record amply supports the trial
court's finding that counsel confronted defendant's wife with prior inconsistent
statements and the financial benefit she stood to reap if petitioner were to be
convicted of attempted murder and incarcerated. Judge Ryan concluded counsel
chose a far more effective strategy of cross-examination by focusing on the
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witness's financial incentive to have defendant convicted rather than trying to
elicit from her that defendant had been a good and loving husband. We conclude
that counsel's cross examination of his wife falls within the range of reasonable
professional assistance. Ibid.
We add with respect to the second Strickland prong that it is highly
unlikely, much less reasonably probable, that any favorable testimony about the
marriage elicited from defendant's wife would have changed the outcome of the
trial, id. at 694, especially given the recorded conversations played to the jury
in which defendant is heard conspiring to murder her.
E.
We next address defendant's contention that even if trial counsel did not
commit any single error at trial that by itself warrants relief, she committed
multiple errors that, viewed cumulatively, are sufficient to entitle him a new
trial. See State v. Jenewicz, 193 N.J. 440, 473 (2008) (recognizing that "even
when an individual error or series of errors does not rise to reversible error,
when considered in combination, their cumulative effect can cast sufficient
doubt on a verdict to require reversal"). We hold that defendant has failed to
establish that counsel committed any error at all in discharging her professional
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responsibilities, much less multiple errors whose cumulative effect would
probably have changed the verdict.
Finally, defendant contends there are several factual issues in material
dispute that lie outside the record, thereby warranting an evidentiary hearing.
We agree with the trial court that defendant has failed to establish any of the
requisite elements supporting the grant of an evidentiary hearing. R. 3:22-10(b).
Notably, defendant has failed to support his PCR with any certifications or
affidavits, rendering many of his arguments mere "bald assertions." Cummings,
321 N.J. Super. at 170. Without competent proofs, defendant has not established
there are material issues of disputed fact that lie outside the record.
Furthermore, even viewing the facts in the light most favorable to defendant, he
has failed to show a reasonable likelihood of success under the Strickland test.
Preciose, 129 N.J. at 463. We conclude the present evidentiary record is
sufficient to deny defendant's petition for PCR. Accordingly, the PCR court did
not err in denying defendant's request for an evidentiary hearing.
To the extent we have not addressed them, any additional arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
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