NOT FOR PUBLICATION WITHOUT THE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.
4 A-3641-15T4
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.
9 A-3641-15T4
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
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(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.
16 A-3641-15T4