STATE OF NEW JERSEY v. IGNACIO VASQUEZ (15-12-0773, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4460-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IGNACIO VASQUEZ,
a/k/a IGNACIO ORTIZ
VASQUEZ,
Defendant-Appellant.
_______________________
Submitted November 18, 2021 – Decided March 18, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-12-0773.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Albert Cernadas, Jr., Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Ignacio Vasquez appeals from an April 23, 2020 order denying
his post-conviction relief (PCR) petition without a hearing. We affirm, albeit
on slightly different grounds than the PCR judge.
We discern the following facts from the record. In 2015, defendant lived
with his girlfriend, Yuri Cruz, and their eight-year-old son, K.O., in a bedroom
on the second floor of a rooming house in Rahway, New Jersey. On September
12, 2015, the Rahway Police Department responded to a 911 call regarding a
suspicious death and discovered Cruz's body in her bed with obvious ligature
marks around her neck and ruptured blood vessels in her eyes.
Defendant waived his Miranda rights and confessed in a videotaped
statement to police. A Miranda hearing was held on April 24, 2018 to consider
the admissibility of defendant’s videotaped statements. As the video was
played, defendant became "visibly emotional" and, after consulting with
counsel, entered an "open" guilty plea to first-degree murder, N.J.S.A. 2C:11-
3(a)(1) and/or (a)(2) (count one); and second-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a)(2) (count two). In his allocution, defendant
admitted to strangling Yuri and leaving K.O. alone with his dead mother’s body
for some time.
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At the June 8, 2018 sentencing hearing, defendant's attorney stated he
would not "go through the aggravating and mitigating factors" because he knew
the State would. Defense counsel argued, however, that he "never represented
a . . . man in this situation, who was more melancholy, sad, disconsolate, . . .
[or] morose[.]" Trial counsel stated defendant was "depressed . . . over what
had happened[,]" and "had no excuse for his behavior." Counsel noted defendant
cooperated with the detectives, and at the Miranda hearing he "wanted to admit
what he had done and recognize that it was something that he could never take
back and never make better, but to accept punishment." Defendant's attorney
also noted defendant had "no prior criminal record."
The sentencing judge found aggravating factors one (nature and
circumstances of the offense), two (gravity and seriousness of harm inflicted on
the victim), and nine (need for deterring defendant and others) as well as
mitigating factor seven (no history of prior delinquency). On count one, the
judge imposed a sentence of forty years, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. On count two, she sentenced defendant to a seven-
year term, to run consecutively to the sentence on count one.
Defendant appealed his sentence to our excessive sentence calendar to
request a reduction of the imprisonment term on count one from forty to thirty
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years. At the hearing, appellate counsel stated "[a]nd we understand that the
[c]ourt properly addressed the Yarbough1 factors and that consecutive sentences
in this case would be appropriate." Defendant argued the sentencing judge
should have considered mitigating factor eight (circumstances highly unlikely
to occur) and nine (his character and attitude). By order dated December 3,
2018, we affirmed defendant's sentence, finding it was "not manifestly excessive
or unduly punitive and [did] not constitute an abuse of discretion." See State v.
Cassady, 198 N.J. 165 (2009); State v. Roth, 95 N.J. 334 (1984). The Supreme
Court denied certification. State v. Vasquez, 236 N.J. 613 (2019).
On September 5, 2019, defendant filed this PCR petition, alleging
ineffective assistance of counsel. On April 17, 2020, the PCR judge denied
defendant's petition without an evidentiary hearing for failure to establish a
prima facie case of ineffective assistance of counsel. This appeal followed.
Defendant raises the following points on appeal:
POINT I
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL FOR FAILING
TO ARGUE MITIGATING FACTORS AT THE TIME
OF SENTENCE, FOR FAILING TO ADEQUATELY
INVESTIGATE A PASSION/PROVOCATION
1
State v. Yarbough, 100 N.J. 627, 643-44 (1985).
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DEFENSE, AND FOR FAILING TO CHALLENGE
THE IMPOSITION OF CONSECUTIVE
SENTENCES.
A. APPLICABLE LAW.
B. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE WHEN COUNSEL FAILED TO
ARGUE MITIGATING FACTORS AT
SENTENCING.
C. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FOR COUNSEL'S FAILURE TO
CONDUCT A MINIMALLY ADEQUATE
INVESTIGATION INTO A CLAIM OF
PASSION/PROVOCATION.
D. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FOR COUNSEL'S FAILURE TO
ARGUE THE MISAPPLICATION OF
CONSECUTIVE SENTENCES.
"[W]e review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to post-conviction relief, . . . then an evidentiary hearing need not be
granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,
158 (1997)). We review the denial of a PCR petition with "deference to the trial
court's factual findings . . . 'when supported by adequate, substantial and credible
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evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in original)
(quoting Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). Where,
as here, "no evidentiary hearing has been held, we 'may exercise de novo review
over the factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)
(alteration in original) (quoting Harris, 181 N.J. at 421). We also review de
novo the legal conclusions of the PCR judge. Harris, 181 N.J. at 415-16 (citing
Toll Bros., 173 N.J. at 549).
A defendant seeking PCR must establish "by a preponderance of the
credible evidence" that he is entitled to the requested relief. State v. Nash, 212
N.J. 518, 541 (2013) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). The
defendant must allege and articulate specific facts that "provide the court with
an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
Ineffective assistance of counsel claims must satisfy the two-prong test
set forth in Strickland v. Washington, which was also adopted by the New Jersey
Supreme Court in State v. Fritz. 466 U.S. 668, 687 (1984); 105 N.J. 42, 58
(1987). Under the first prong, a "defendant must show that counsel's
performance was deficient" and that counsel's errors were so egregious that he
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"was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. The second prong requires a
defendant to demonstrate that the alleged defects prejudiced his right to a fair
trial to the extent "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 60-61 (internal quotation marks
omitted).
In light of these guiding principles, we reject defendant's argument that
trial counsel failed to investigate a possible defense of passion/provocation as
his claim is belied by the transcript of his April 24, 2018 plea hearing:
THE COURT: Mr. Russo said that you had some
discussions about possible defenses. Correct?
[DEFENDANT]: Yes.
THE COURT: In fact, you had a discussion about a
possible defense of passion provocation. Is that right?
[DEFENDANT]: Yes.
THE COURT: And you're aware that Mr. Russo filed a
notice to the [c]ourt that he intended asking for a
passion/provocation charge at the time the jury was to
consider the case. You're aware of that as well?
[DEFENDANT]: Yes.
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THE COURT: You understand by pleading guilty
today you're giving up any sort of defenses to be put
before this jury, including asking for a lesser included
[charge] of passion/provocation manslaughter? Do you
understand that?
[DEFENDANT]: Yes.
THE COURT: I'm – I'm just letting you know that I –
I don't know whether or not I would let the jury have
that charge, but I'm just telling you that there's possible
defenses that you could put forward. You're giving up
that right by pleading guilty. Do you understand that?
[DEFENDANT]: Yes.
THE COURT: Are you satisfied with the advice that
you've received from Mr. Russo in this matter?
[DEFENDANT]: Yes.
As the PCR judge found, defendant's argument has no merit and requires no
further discussion.
We also reject defendant's assertions with respect to sentencing. When
the allegations underpinning an ineffective assistance of counsel claim has
already been raised on direct appeal, "it may be procedurally barred on PCR by
Rule 3:22-5." State v. McQuaid, 147 N.J. 464, 484 (1997).
Rule 3:22-5 provides:
A prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction
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proceeding brought pursuant to this rule or prior to the
adoption thereof, or in any appeal taken from such
proceedings.
"'Preclusion of consideration of an argument presented in post-conviction
relief proceedings should be affected only if the issue [raised] is identical or
substantially equivalent' to that issue previously adjudicated on its merits."
McQuaid, 147 N.J. at 484 (quoting State v. Bontempo, 170 N.J. Super. 220, 234
(Law Div. 1979)). The court will not accept a defendant's contention that he
was unable to raise the issue of ineffective assistance of counsel in cases where
the issue "could have been raised and would be procedurally barred but for the
constitutional attiring of the petition in ineffective assistance of counsel
clothing." State v. Moore, 273 N.J. Super. 118, 125 (1994).
Defendant's arguments that counsel was ineffective for failing to address
mitigating factors eight (circumstances highly unlikely to occur), nine (his
character and attitude), and twelve (his willingness to cooperate with law
enforcement) and for failing to challenge the court's imposition of consecutive
sentences raised on PCR are identical to the issues raised and adjudicated in his
sentencing appeal. Thus, Rule 3:22-5 bars relief because these issues were
previously adjudicated. See State v. Sloan, 226 N.J. Super. 605, 611-12 (App.
Div. 1988) (finding that defendant's claim of ineffective assistance of counsel
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was barred because it had been raised and rejected on direct appeal). Defendant
cannot overcome the procedural bar by attiring the same arguments as an
ineffective-assistance claim. See Moore, 273 N.J. Super. at 125.
To the extent we have not addressed defendant's arguments, we find they
lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-
3(e)(2).
Affirmed.
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