STATE OF NEW JERSEY VS. PAUL RODGERS(07-08-1322, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3641-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL RODGERS, a/k/a
ROLANDO BETANCOURT,1

Defendant-Appellant.

________________________________

Submitted October 11, 2017 – Decided November 20, 2017

Before Judges Yannotti and Carroll.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
07-08-1322.

Paul Rodgers, appellant pro se.

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Stephanie Davis
Elson, Assistant Prosecutor, on the brief).

1
We note that this matter was initially captioned State of New
Jersey v. Rolando Betancourt a/k/a Paul Rodgers. We have changed
the caption to conform with the indictment, judgment of conviction,
and previous opinions in this matter.
PER CURIAM

Defendant appeals from an order entered by the Law Division

on March 16, 2016, which denied his third petition for post-

conviction relief (PCR). We affirm.

I.

Defendant was charged with third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(5)(a) (count one); second-degree disarming a

law enforcement officer, N.J.S.A. 2C:12-11(a) (count two); and

second-degree attempted escape, N.J.S.A. 2C:29-5(a) (count three).

Defendant was tried before a jury.

At the trial, the State presented evidence which established

that on June 5, 2007, officers from the Hudson County Sheriff's

Office brought defendant to the County Administration Building for

a court appearance on an unrelated criminal charge. He was held

in a receiving area and placed in restraints.

At some point, a sheriff's officer escorted defendant from

the receiving area to a cell and then to the ninth floor where

Officer Michael Diaferia was waiting to bring defendant to a

courtroom. When defendant arrived on the ninth floor and exited

the elevator, he began to shout and curse. Officer Diaferia noted

that the handcuff on defendant's left hand appeared to be defaced.

The officer obtained a replacement pair of handcuffs and

approached defendant. As he did so, defendant's handcuff fell

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apart and hit the ground. At that point, defendant grabbed the

officer's weapon. The officer engaged in a struggle with defendant,

during which time defendant and the officer fell to the ground.

Other officers arrived and defendant was secured. Officer Diaferia

and defendant suffered physical injuries that required medical

treatment.

Defendant testified, however, that when he arrived on the

ninth floor, several officers were there. While the officers were

discussing what to do with defendant, defendant sat down in an

area he referred to as the "bullpen." Defendant asserted that

Officer Diaferia confronted him. He stated that matters escalated

and the officer "roughed" him up. According to defendant, a

physical scuffle ensued. The officer hit his head on the corner

of the furniture, but then stood up and injured defendant's foot.

Defendant was found not guilty of disarming the officer, but

guilty of aggravated assault on the officer and attempted escape.

At sentencing, the judge found that defendant was eligible for

sentencing to an extended term as a persistent offender, pursuant

to N.J.S.A. 2C:44-3(a).

The judge sentenced defendant to an extended term of twenty

years of incarceration, with ten years of parole ineligibility,

for the attempted escape, and required that the sentence be served

consecutive to a forty-year prison term defendant was then serving.

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On the conviction for aggravated assault, the judge imposed a ten-

year prison term, with five years of parole ineligibility, to run

concurrently with the twenty-year prison term for attempted

escape.

Defendant appealed from the judgment of conviction dated

March 25, 2008, and raised the following arguments:

POINT I
THE TRIAL COURT'S CONFUSING JURY INSTRUCTIONS
ON THE CHARGE OF ATTEMPTED ESCAPE ALLOWED THE
JURORS TO CONVICT [DEFENDANT] IF THEY FOUND
HE ACTED WITH LESS THAN THE PURPOSEFUL,
CULPABILITY REQUIRED. U.S. CONST., Amends. V,
XIV; N.J. Const. (1949) Art. I, ¶ 1. (Not
raised below).

A. The trial court's jury charge on attempted
escape was fatally flawed because it failed
to include a critical portion of the Model
Jury Charge on that offense.

B. When, during deliberations, the jurors
asked for an explanation of attempted escape,
the trial court failed again to give the
portion of the Model Charge that clarifies the
need to find a purposeful mental state for
this offense, even though an actual "escape"
requires only a "knowing" state of mind.

POINT II
THE [TWENTY]-YEAR EXTENDED PRISON TERM, [TEN]
YEARS WITHOUT PAROLE, WHICH THE TRIAL COURT
IMPOSED ON THE CONVICTION OF [SECOND] DEGREE
ATTEMPTED ESCAPE WAS EXCESSIVE.

In an unpublished opinion, we affirmed defendant's conviction

but remanded the matter to the trial court for re-sentencing.

State v. Rodgers, No. A-5373-07 (App. Div. Aug. 7, 2009) (slip op.

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at 15). The Supreme Court later denied defendant's petition for

certification. State v. Rodgers, 209 N.J. 430 (2012).

In March 2012, defendant filed a pro se petition for PCR,

alleging ineffective assistance of trial and appellate counsel.

The court appointed counsel to represent defendant, and counsel

filed an amended PCR petition. In the amended petition, defendant

alleged that trial counsel erred by failing to object to the

court's jury instruction on attempted escape; and appellate

counsel was ineffective because counsel failed to raise the charge

issue on appeal. Defendant also claimed his trial attorney was

ineffective because counsel did not consult with him or investigate

the case adequately. Defendant sought an evidentiary hearing on

his petition.

On March 11, 2013, the PCR court considered the petition and

placed an oral decision on the record. The court found that Rule

3:22-5 barred defendant's claim regarding the jury instruction

because that issue had been raised and resolved against defendant

in his direct appeal. The court also found that defendant's claim

that counsel failed to investigate the case adequately failed

because defendant had not presented any facts showing what such

an investigation would have revealed, the witnesses who would have

been identified, "or how their testimony may have affected the

outcome of the case[.]" The court entered an order dated March 11,

5 A-3641-15T4
2013, denying the petition without an evidentiary hearing.

Defendant appealed from the court's order.

In that appeal, defendant's counsel raised the following

arguments:

POINT I
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
OF PCR COUNSEL, WHO FAILED TO PROVIDE
SUBSTANTIATION OF DEFENDANT'S CLAIM OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
RESULTING IN DISMISSAL OF THE PETITION WITHOUT
AN EVIDENTIARY HEARING.

POINT II
THE PCR COURT ERRED IN DISMISSING THE PETITION
BECAUSE DEFENDANT DEMONSTRATED THAT HIS TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
TO THE JURY CHARGE CONCERNING ATTEMPT.

Defendant also filed a supplemental pro se brief, in which

he argued:

POINT I:
THE PCR COURT['s] DENIAL OF THE PETITION
WITHOUT AN EVIDENTIARY HEARING, REQUIRES [DE
NOVO] REVIEW. NO WRITTEN OPINION, DISCLOSING
THE FINDINGS OF FACTS AND CONCLUSIONS OF LAW
WAS []EVER FILED BY THE JUDGE IN THIS COURT;
AND THAT NO ANSWERING BRIEF FROM THE
RESPONDENT WAS FILED IN THE PROCEEDING HELD
IN THE PCR COURT NOR BEFORE THIS COURT WAS
EVER FILED, RENDERS THIS APPEAL TO BE
UNOPPOSED [SIC] (Not Raised Below).

A. PCR Court Improperly [D]enied the [H]olding
of Evidentiary Hearing, a De Novo Review [I]s
Required [Sic].

POINT II:
TRIAL COUNSEL FAILED TO DO ANY INVESTIGATION
PRIOR TO TRIAL AND AS A RESULT FAILED TO CALL

6 A-3641-15T4
 FAVORABLE WITNESSES, CAUSING INEFFECTIVE
ASSISANCE OF COUNSEL BY FAILING TO PURSUE [AN]
ALIBI DEFEN[S]E, AND [BY] FAILING TO PROVIDE
ADEQUATE ASSISTANCE (Partially raised below).

POINT III:
THE CASE MUST BE REVERSED AND REMANDED TO THE
TRIAL COURT VACATING ALL SENTENCES FOR AN
ENTRY OF A JUDGMENT OF ACQUITTAL [SIC].
MOREOVER THE COURT FAILED TO CONSIDER ANY OF
THE SENTENCING FACTORS APPLICABLE TO THE
DEFENDANT BASED ON HIS PRIOR CRIMINAL RECORD
OF CONVICTIONS. THUS RENDERING DEFENDANT'S
SENTENCE ILLEGAL (Not raised below).

A. De Novo Review [S]ought to [R]esolve the
Illegal Sentence [Sic].

B. Aggravating Factor [D]id [N]ot Apply [a]nd
"the [C]ourt" [D]id [N]ot [O]btain the Consent
of Defendant [Sic].

C. Imposition of No Early Release Act [I]s
Illegal [Sic].

POINT IV:
THE PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION, BECAUSE DEFENDANT DEMONSTRATED A
[PRIMA FACIE] SHOWING OF INEFFECTIVE
ASSISTANCE OF COUNSEL, BY ALL CLAIMS MADE,
INCLUDING HIS FAILURE TO OBJECT CONCERNING THE
JURY CHARGE GIVEN ON ATTEMPTED ESCAPE, HAVING
BEEN CONVICTED [OF] ESCAPE [SIC]. (Partially
raised below).

While the appeal was pending, on September 26, 2013, defendant

filed another pro se PCR petition. The PCR court entered an order

dated February 10, 2014, denying the petition. In a letter issued

with the order, the court stated that the petition was procedurally

barred. On February 24, 2014, defendant filed a motion for

7 A-3641-15T4
reconsideration of the court's order. On April 24, 2014, the court

denied the motion.

In a letter to the court dated May 2, 2014, defendant stated

that the court's order was void ab initio and should be rescinded.

The PCR court responded in a letter dated August 1, 2014, stating

that since defendant's appeal from the denial of his first PCR

petition was pending, the court rules required that the second

petition be dismissed without prejudice. See R. 3:22-6A(2).

Thereafter, in an unpublished opinion, we affirmed the denial

of defendant's first PCR petition. State v. Rodgers, No. A-1010-

13 (App. Div. June 5, 2015) (slip op. at 10). The Supreme Court

subsequently denied defendant's petition for certification. State

v. Rodgers, 223 N.J. 404 (2015).

II.

On January 5, 2016, defendant filed another pro se PCR

petition. In his affidavit submitted in support of the petition,

defendant asserted that he was denied the effective assistance of

PCR counsel because he allegedly had instructed PCR counsel to

assert that trial counsel was ineffective because counsel: failed

to introduce exculpatory evidence in the form of medical records

regarding his injuries and those sustained by Officer Diaferia;

did not submit photos of defendant's injuries to the jury; failed

to seek an adjournment to prepare for trial properly; did not

8 A-3641-15T4
object to the admission of a DVD or seek to view the DVD before

it was shown to the jury; and failed to investigate the matter to

find witnesses who could support defendant's claim of excessive

force and the injuries he suffered.

He further alleged that he told PCR counsel to argue that his

trial attorney was ineffective because counsel: accepted the

State's version of the facts; failed to provide defendant with

discovery in a timely manner and communicate with him regarding

discovery; claimed fraudulently that he disclosed discovery to

defendant in three different court appearances; did not seek an

adjournment to prepare defendant for his trial testimony;

consented to the placement of "special detail officers" behind

defendant's chair during the trial; and ignored his plea to press

criminal charges against Officer Diaferia.

In addition, defendant claimed he instructed PCR counsel to

assert that his trial attorney was ineffective because counsel:

failed to request certain jury instructions; told him he would not

investigate the case and would prepare for trial at his own

leisure; did not object to the court's response to the jury's

question regarding the instruction on "attempted escape;" and

failed to seek an instruction on the lesser-included offense of

third-degree attempted escape.

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 Defendant further alleged that he had instructed PCR counsel

to assert that: the trial court committed plain error by failing

to grant adequate time for defendant to discuss the discovery with

counsel and prepare "a factual strategy;" and he was prejudiced

because the State used the alias Paul Rodgers, did not formally

arrest him, fingerprint him, take his "mug shot," or present him

with the charges in this matter. He also claimed that appellate

counsel was ineffective because counsel never contacted him until

after counsel filed defendant's direct appeal, failed to instruct

him regarding his rights as a self-represented litigant, and did

not discuss "pertinent issues" with him prior to filing the appeal.

The PCR court issued a letter opinion dated March 16, 2016,

in which the court stated that defendant's petition was

procedurally barred by Rule 3:22-4(b) and Rule 3:22-12(2)(c). The

court added that even if it ignored the procedural time-bar, "the

result would be the same." The court wrote that the issues raised

had either been previously litigated and resolved either on the

direct appeal or in the first PCR petition. The court also stated

that the final judgments rendered in the earlier proceedings

precluded defendant from re-litigating the issues raised and

decided in those proceedings. The court entered an order dated

March 16, 2016, denying the petition. This appeal followed.

10 A-3641-15T4
 On appeal, defendant raises the following arguments: (1) he

is not barred from filing what he claims is his second PCR

petition; (2) the court erred by failing to grant an evidentiary

hearing; (3) he is not procedurally barred from filing his second

PCR petition under Rules 3:22-4 or 3:22-12; (4) the court erred

by treating the matter as a third PCR petition, and failed to

review the petition for assignment of counsel pursuant to Rule

3:22-6(b); (5) the court should have conducted an evidentiary

hearing because he presented sufficient evidence to establish a

prima facie case; (6) he was denied the right to due process and

a fair trial because the State's prosecutor failed to investigate

for exculpatory evidence and did not submit medical reports; and

(7) he was denied the effective assistance of counsel because his

trial attorney and PCR counsel did not investigate and produce

medical reports, witnesses, and videotaped evidence.

Having thoroughly reviewed the record in light of the

applicable legal principles, we are convinced that defendant's

arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). However, we add the following comments.

Rule 3:22-4(b) provides that a second or subsequent PCR

petition must be dismissed unless

(1) it is timely under [Rule] 3:22—12(a)(2);
and

11 A-3641-15T4
 (2) it alleges on its face either:

(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of New
Jersey, that was unavailable during the
pendency of any prior proceedings; or

(B) that the factual predicate for the relief
sought could not have been discovered earlier
through the exercise of reasonable diligence,
and the facts underlying the ground for
relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be
granted; or

(C) that the petition alleges a prima facie
case of ineffective assistance of counsel that
represented the defendant on the first or
subsequent application for post-conviction
relief.

Here, defendant argues that his petition is not barred because

he is asserting ineffective assistance on the part of PCR counsel.

As we noted previously, in his latest petition, defendant claims

that his PCR counsel failed to follow his instructions and raise

claims of ineffective assistance of counsel by his trial counsel.

Defendant alleges he instructed PCR counsel to assert that

trial counsel was deficient for various reasons, including

counsel's alleged failure to: introduce certain evidence regarding

his injuries and those sustained by Officer Diaferia; seek a

postponement of the trial so that counsel could prepare; object

to the introduction of certain evidence; object to the presence

12 A-3641-15T4
of security officers in the courtroom; investigate the matter

properly; produce certain witnesses who would have supported

defendant's version of the incident; provide discovery to

defendant in a timely manner and consult with him regarding the

discovery; and seek certain jury instructions or object to the

court's instruction on "attempted escape."

Claims of ineffective assistance of counsel are considered

under the two-part test enunciated in Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984), and adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). The Strickland test requires a defendant to

show that the performance of his attorney was deficient, and

counsel's deficient performance prejudiced the defense.

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693.

To meet the first part of the Strickland test, a defendant

must establish that his attorney "made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Ibid. The defendant must rebut

the "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance[.]" Id. at 689,

104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

13 A-3641-15T4
 Moreover, to satisfy the second part of the Strickland test,

the defendant must show "that counsel's errors were so serious as

to deprive defendant of a fair trial, a trial whose result is

reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The defendant must establish that there is "a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We are convinced that even if PCR counsel had followed

defendant's instructions and raised the claims of ineffective

assistance of trial counsel, defendant has not shown that the

result of his first PCR petition would have been different.

Notwithstanding defendant's arguments to the contrary, defendant

failed to show that PCR counsel erred by failing to raise these

claims.

Defendant presented the PCR court with medical records of his

injuries, dated July 30, 2007, and October 1, 2007. He claimed

these records were exculpatory and his attorney erred by failing

to present them at trial. The records indicate that at some point

defendant's right ankle was fractured. However, even if these

records had been admitted at trial, they would not have absolved

defendant of aggravated assault or attempted escape.

14 A-3641-15T4
 Furthermore, defendant claimed a video showed a witness to

the incident who was not called to testify at trial. There is,

however, no indication the witness would have provided testimony

that supported defendant's version of the incident. Thus, there

is no merit to defendant's claim that he was denied the effective

assistance of counsel because his trial attorney failed to

investigate the matter, present exculpatory evidence, and produce

favorable witnesses.

Defendant's other claims of ineffective assistance of trial

counsel also fail to meet the Strickland test. Even if we assume

that counsel should have taken the actions defendant claims should

have been taken, defendant has not established a reasonable

probability the result of the trial court proceedings would have

been different.

Thus, assuming defendant's latest PCR petition was timely

under Rule 3:22-12(a)(2), he has not presented a prima facie claim

of ineffective assistance of PCR counsel. He has not shown that

PCR counsel erred by failing to raise claims of ineffective

assistance of counsel on the part of defendant's trial attorney,

or that the result of the first PCR proceeding would have been

different if those claims had been raised.

15 A-3641-15T4
 Therefore, the PCR court correctly found that defendant's

latest PCR petition was barred by Rule 3:22-4(b). Accordingly, we

affirm the order denying PCR.

Affirmed.

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