NOT FOR PUBLICATION WITHOUT THE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-4205-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CELSO LAREDO MADRIGAL, a/k/a
CELSO MADRIGAL-LAREDO,
Defendant-Appellant.
___________________________________
Submitted October 10, 2017 – Decided June 26, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 10-
06-1210.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella,
Chief Appellate Attorney, of counsel and on
the brief).
PER CURIAM
Defendant appeals from an April 6, 2016 order, denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant argues his attorney pursued a "bizarre" trial
strategy; did not communicate with him about the strategy before
trial; and dissuaded him from accepting the State's plea offer in
favor of pursuing the defense. Defendant contends the trial court
should have ordered an evidentiary hearing. We reject defendant's
arguments and affirm.
A jury found defendant guilty of third-degree possession of
cocaine, and first-degree possession with intent to distribute it.
N.J.S.A. 2C:35-10(a)(1), -5(a)(1), -5(b)(1). After merger,
defendant was sentenced to a fifteen-year term with a seven-and-
a-half-year parole bar. We detailed the facts in State v.
Madrigal, No. A-2713-11 (App. Div. July 21, 2014) (slip op. at 2-
4).
Relevant to this appeal is defense counsel's guns-instead-
of-drugs trial strategy. As we discussed in our previous decision,
defense counsel advanced a strategy that cast doubt on the State's
proofs that defendant sold a confidential informant cocaine.
Instead, counsel argued, and defendant testified, that the
informant gave him cash to purchase guns, a task defendant never
completed. Notably, defendant was not charged with gun-related
offenses. Thus, if the jury accepted the defense theory, it would
have resulted in an acquittal. The defense strategy was raised
in concert with an entrapment defense, but the trial court declined
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to charge the jury on the latter, finding the evidence did not
support it.
We declined to consider on direct appeal defendant's
contention that the guns-instead-of-drugs defense was, on its
face, ineffective assistance of counsel. Id. at 7. We noted that
the evidence was overwhelming that defendant sold almost ten ounces
of cocaine to a confidential informant.1 Id. at 6. The defense
strategy provided an alternative explanation for the evidence
presented. We noted that defendant offered no evidence regarding
an alternative defense that may have been available, or his
consultations with counsel. Id. at 7. Defendant rejected a plea
offer of a ten-year-term with a thirty-month parole bar, although
by that time, he had already served almost two years. Ibid.
However, an immigration detainer was lodged against him. Ibid.
In denying defendant's petition, Judge James M. Blaney — who
did not preside at the trial — found that defendant failed to
establish a prima facie claim of ineffective assistance of counsel.
Applying the first prong of the Strickland test, see Strickland
v. Washington, 466 U.S. 668, 687 (1984), the judge found defendant
1
The three transactions were videotaped. Although the recordings
did not show the drugs or money exchanged, they depicted defendant
and the informant engage in conversations consistent with the
exchange or sale of something. The informant testified, along
with the officers who supervised him.
3 A-4205-15T4
failed to establish his attorney was deficient in raising the
guns-instead-of-drugs defense. Judge Blaney explained that trial
counsel engaged in a "legitimate, albeit unsuccessful, trial
strategy to attack the credibility of the confidential informant."
He also found, in view of the evidence the State presented, that
defendant failed to establish it was reasonably probable the result
would have been different had the defense pursued a different
strategy. See ibid. (discussing second prong of test). Lastly,
quoting State v. Marshall, 148 N.J. 89, 158 (1997), the court
denied an evidentiary hearing, concluding it would "not aid the
court's analysis . . . ."
On appeal, defendant raises one point for our consideration:
POINT ONE
MR. MADRIGAL IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM
THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.
We affirm, substantially for the reasons expressed by Judge
Blaney in his cogent written opinion. We add the following brief
comments.
We declined to reach defendant's claim of ineffective
assistance of counsel on direct appeal because the defense appeared
plausible and strategic, and defendant presented no competent
evidence of his consultations with counsel, or any alternative
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defenses he may have considered in the face of the compelling case
against him. Defendant still has provided no competent evidence
of his consultations with counsel, or the alternative strategy he
would have pursued. Nor is there any competent evidence to support
defendant's claims that his attorney did not adequately
communicate with him, and steered him to reject the plea offer by
telling him his case was "easy."
Defendant's pro se petition says nothing about these claims.
Although defendant's counseled brief includes assertions on these
topics, they lack any verification from defendant as to their
truth. On this basis alone, defendant failed to present any
evidence to support PCR, see R. 3:22-8 (requiring a verified
petition in support of PCR), let alone a prima facie case that
might warrant an evidentiary hearing, see R. 3:22-10(b) (stating
a court should grant an evidentiary hearing only "upon the
establishment of a prima facie case in support of" PCR, where "an
evidentiary hearing is necessary to resolve the claims for
relief").
In any event, defendant's claims lack merit. Defendant's
claim he was not consulted about the guns-instead-of-drugs
strategy is belied by his testimony in support of it. Furthermore,
defense counsel referred to the strategy in defendant's presence
in court, when discussing defendant's plan to testify. Defendant's
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contention about plea offers is likewise belied by the record. At
a pre-trial hearing, defense counsel stated he reviewed the plea
offer with defendant numerous times, and advised defendant to
accept it, because the case would be "difficult" to try. Defendant
acknowledged those conversations, but was steadfast in his desire
to go to trial.2
Instead of the guns-instead-of-drugs strategy, defendant
argues his attorney should have focused on reasonable doubt, and
the fact that the drugs and currency were not visible on the
videotape. Even if that were a preferable strategy in hindsight
— certainly, it could not have produced a worse result — trial
counsel was not deficient in pursuing a strategy that provided an
alternative explanation for what transpired between defendant and
the informant. "A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight . . . ." Strickland, 466 U.S. at 689. We are also
unpersuaded that it was reasonably probable that an acquittal
would have resulted from the trial strategy defendant now endorses.
2
Inasmuch as an immigration detainer was already lodged against
him, perhaps, defendant was motivated to go to trial, however
unlikely an acquittal might have been, to avoid removal, rather
than plead guilty and face the near certainty of that outcome.
See Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958, 1968-69
(2017) (stating that it is not "irrational" for a defendant facing
deportation to reject a plea offer and take a chance at trial).
6 A-4205-15T4
Affirmed.
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