STATE OF NEW JERSEY VS. PABLO ANTONIO ACEVEDO (06-10-1443, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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).

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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

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 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.").

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 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.

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