STATE OF NEW JERSEY VS. BIENVENIDO CASILLA (98-10-0052, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3598-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BIENVENIDO CASILLA,

Defendant-Appellant.

__________________________________

Submitted October 18, 2017 – Decided November 16, 2017

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
98-10-0052.

Bienvenido Casilla, appellant pro se.

Christopher S. Porrino, Attorney General,
attorney for respondent (Emily R. Anderson,
Deputy Attorney General, of counsel and on the
brief).

PER CURIAM

Defendant appeals from a March 18, 2016 order denying without

an evidentiary hearing his third petition for post-conviction

relief (PCR). We affirm.
 The facts underlying defendant's conviction of purposeful or

knowing murder, kidnapping, and other offenses are detailed in our

opinion disposing of defendant's direct appeal and we need not

recount them. State v. Casilla, 362 N.J. Super. 554, 557-60 (App.

Div.), certif. denied, 178 N.J. 251 (2003). We affirmed

defendant's convictions and sentences for murder and hindering

apprehension; vacated his conviction for first-degree kidnapping

and remanded for re-sentencing on that count as a second-degree

offense; and reversed his convictions for racketeering and theft

by extortion. Id. at 571.

The State did not retry defendant on the racketeering and

attempted theft by extortion counts. The trial court re-sentenced

defendant on the second-degree kidnapping offense to a consecutive

ten-year prison term subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. On a sentencing calendar, Rule 2:9-11, we

affirmed the consecutive sentences but remanded to the trial court

to consider the applicability of NERA and the constitutional issues

discussed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004). State v. Casilla, No. A-3709-03 (App.

Div. Sept. 30, 2004). Following remand, the trial court imposed

the identical sentence.

Defendant subsequently filed two PCR petitions. In each

instance, the trial court denied the petition and the implementing

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order was affirmed on appeal. State v. Casilla, No. A-2994-05

(App. Div. June 11, 2007), certif. denied, 192 N.J. 482 (2007);

State v. Casilla, No. A-4838-10 (App. Div. Nov. 5, 2012), certif.

denied, 214 N.J. 119 (2013).

Defendant also filed a petition for habeas corpus. The United

States District Court dismissed the petition and denied

defendant's certificate of appealability because defendant had not

made "'a substantial showing of the denial of a constitutional

right' under 28 U.S.C. § 2253(c)(2)." Casilla v. Ricci, No. 08-

3546 (D.N.J. Dec. 10, 2009) (slip op. at 37). The United States

Court of Appeals for the Third Circuit denied defendant's

application for a certificate of appealability and dismissed

defendant's appeal for lack of jurisdiction. The United States

Supreme Court denied defendant's petition for a writ of certiorari.

Casilla v. Ricci, 562 U.S. 1093, 131 S. Ct. 799, 178 L. Ed. 2d 535

(2010).

We rejected the following contentions defendant raised on

direct appeal:

(1) his right to due process was violated when
the court failed to submit the element of
jurisdiction to the jury; (2) the court
committed reversible error on the murder count
when it responded to a jury question with a
supplemental instruction that defendant could
be found to be an accomplice; (3) the court
should have granted his motion to suppress the
wiretaps . . . .

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 [Casilla, supra, No. A-4838-10 (slip op. at
2-3) (citing Casilla, supra, 362 N.J. Super.
at 561).]

On his appeal from the denial of his first PCR petition, we

rejected defendant's arguments that his trial counsel was

ineffective for failing to:

(1) file a motion challenging the legality of
his warrantless arrest; (2) file a motion to
suppress his confession; (3) ensure during
jury selection that some of the jurors spoke
or understood Spanish; (4) object to the jury
instruction on accomplice liability as to
count four (murder); (5) challenge the
validity of the indictment; and (6) object to
hearsay evidence.

[Casilla, supra, No. A-2994-05 (slip op. at
1).]

Lastly, we rejected the following arguments on defendant's

appeal from the denial of his second PCR petition:

Defendant asserted the following
specific claims of ineffective assistance of
trial counsel:

failed to effectively challenge
Court Clerk's actions, causing the
jury to deliver an irreconcilable
and/or inconsistent verdict[; . . .]
failed to challenge Court's
sentencing for murder charges, a
charge for which defendant had been
found Not Guilty[; . . . and] failed
to effectively challenge conviction
for felony murder based on an
accomplice liability theory, when
in fact accomplice liability had
never been charge on indictment in
connection with count five, felony

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 murder and accomplice liability was
never specifically charge[d] by the
judge, among numerous other
critical failures.

According to defendant, trial counsel was
also "grossly ineffective" at the resentencing
in: (1) not challenging the court's imposition
of consecutive sentences on felony murder and
second-degree kidnapping, which he asserts is
an illegal sentence, and (2) allowing him to
be convicted as an accomplice to felony murder
without having been indicted for that crime
and without the court specifically charging
that offense in connection with felony murder.

Defendant alleged appellate counsel was
"egregiously ineffective" in failing to
identify and effectively raise the above
instances of trial counsel's ineffectiveness,
and "blatantly ineffective" in failing to
challenge on appeal the above instances of the
court's violation of defendant's
constitutionally guaranteed due process
rights.

Defendant also alleged ineffective
assistance of first PCR counsel in failing "to
adequately prepare and exercise normal
customary skills in preparation" of his PCR
and failing to investigate and properly assert
his meritorious claims of ineffective
assistance of trial and appellate counsel and
the constitutional errors of the court.

[Casilla, supra, No. A-4838-15 (slip op. at
9-11).]

On this appeal from his third PCR petition, defendant makes

these arguments:

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POINT I:

DEFENDANT FILES AS PRO SE LITIGANT ASSERTS
EXCUSABLE NEGLECT AND SEEKS PROCEDURAL DUE
PROCESS, TO DEFEND LIFE AND LIBERTY PURSUANT
TO N.J. CONST. ART. I PAR. 1 (Partially raised
below).

A. Petitioners documents and
arguments are held to less stringent
standards than formal pleadings
drafted by lawyers.

B. Excusable Neglect.

C. Right to Due Process.

POINT II:

DEFENDANT WAS DEPRIVED OF HIS RIGHT DURING
VOIR DIRE. THE TRIAL COURT DENIED THE
DEFENDANT HIS RIGHT TO BE PRESENT AT SIDE BAR,
THIS VIOLATED HIS RIGHTS UNDER U.S. CONST.
AMEND. 6; N.J. CONST. ART 1, PAR. 10 CAUSING
BIAS AND PREJUDICE TO DEFENDANT BY INEFFECTIVE
ASSISTANCE OF COUNSEL (Raised below).

POINT III:

DEFENDANT WAS ILLEGALLY BROUGH [sic] TO TRIAL
TO STATE OF NEW JERSEY, COURTS FROM SAME CRIME
THAT THE STATE OF NEW YORK ON CHARGES THAT
WHERE BEING PROSECUTED, TO ALLOW STATE OF NEW
JERSEY MERGE OTHER CHARGES AND PROSECUTE TO
ACHIVE [sic] MULTIPLE PUNISHMENT IN VIOLATION
TO DEFENDANT'S RIGHTS UNDER THE FIFTH,
ELEVENTH, AND FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION (Raised below).

A. Double Jeopardy.

POINT IV:

DEFENDANT [sic] SENTENCE IS CONTRARY TO CODE
OF CRIMINAL JUSTICE; DEFENDANT IS HELD ON AN

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ILLEGALLY IMPOSED SENTENCE THAT ERRONEOUSLY
APPLIED THE NO EARLY RELEASE ACT, WHICH
ACTUALLY IMPOSED "SIMULTANEOUS SENTENCES",
AND ONCE CORRECTED WILL REVEAL THE ACTUAL
SENTENCING ELIGIBILITY TO SATISFY THE
SENTENCE, AND MAKE ENTRY OF CORRECTED JUDGMENT
OF CONVICTION, HAVING ALL SENTECES [sic] BEEN
SATISIED [sic] (Raised below).

A. The No Early Release Act, is
inapplicable to instant Defendant
and infers to false Imprisonment.

B. The Court did not satisfy the
persistent offender Act and
actually imposed "simultaneous
convictions", which places the
convictions to be satisfied.

POINT V:

NO OTHER CONCLUSION CAN BE REACHED BUT THAT
THE EFFECT OF CUMULATIVE TRIAL ERRORS,
COMBINED WITH TRIAL, APPELLATE, AND 1ST PCR
COUNSEL'S OMISSIONS, DURESS, AND PREJUDICE,
DEPRIVED DEFENDANT OF A FAIR TRIAL (Raised
below).

POINT VI:

DEFENDANT'S JUDGMENT SHOULD BE VACATED BECAUSE
TRIAL, APPELLATE, AND 1ST PCR COUNSELS
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL
(Raised below).

POINT VII:

EVIDENTIARY HEARINGS SHOULD BE GRANTED

A. The prevailing Legal principles
Regarding Claims of Ineffective
Assistance of Counsel, Evidentiary
Hearings And Petitions For Post-
Conviction Relief.

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 The trial court determined defendant's third PCR petition was

time-barred, Rule 3:22-12(a)(2), and dismissed it, Rule 3:22-

4(b). The court also determined defendant had raised no

substantial issues of fact or law, and thus had not established

good cause to assign counsel. Rule 3:22-6(b).

We affirm, substantially for the reasons expressed by the

trial court in its written decision. Defendant's arguments are

without sufficient merit to warrant further discussion. R. 2:11-

3(e)(2).

Affirmed.

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