STATE OF NEW JERSEY v. JUAN SOTO (2010)

Defendant Juan Soto appeals from an order dated June 30, 2008, denying his petition for post-conviction relief (PCR).  Defendant contends he is entitled to a new trial because he “was denied his 6th Amendment right to effective assistance of counsel.”   Specifically, defendant claims his trial attorney failed “to properly communicate with [him] before and during trial.”   After reviewing the record in light of the applicable law, we conclude that defendant's arguments are without merit and affirm.

A jury convicted defendant of aggravated manslaughter, felony murder, robbery, conspiracy to commit robbery, kidnapping, burglary, and two counts of possession of a weapon for an unlawful purpose.   At sentencing on April 24, 1998, the court merged defendant's convictions for aggravated manslaughter and burglary with his conviction for felony murder and imposed a life sentence with thirty years of parole ineligibility for felony murder.   Defendant received concurrent sentences for the other offenses.   On appeal, this court affirmed defendant's convictions and his sentence, except for the kidnapping conviction, which was reversed.  State v. Soto, 340 N.J.Super.   47 (App.Div.), certif. denied, 170 N.J. 209 (2001).

Defendant then filed a petition for PCR that was denied by the trial court on August 29, 2006.   Defendant appealed and we remanded the matter to the trial court for further proceedings regarding defendant's claim that he did not receive a fair trial because trial counsel failed to adequately communicate and confer with him.  State v. Soto, No. A-1478-06 (App.Div. Jan. 15, 2008).

On June 19, 2008, the trial court conducted a hearing at which defendant's attorney and defendant both testified.   When defendant's attorney was asked how many times he had met with defendant “either in court or ․ where he was being held,” counsel testified:  “Pretty regularly, but I don't recall.”   Defendant's attorney indicated he utilized an investigator from the Public Defender's office, who spoke English and Spanish, as an interpreter whenever he met with defendant prior to trial.   Defense counsel also testified as follows:

Q. Did you use anyone else to assist you in communicating with Mr. Soto besides the investigator from the public defender's office?

A. During the trial there were two interpreters at all times, so if he would ask a question and my investigator was not there, they would interpret for me.

Q. Is it fair to say that Mr. Soto had his own personal interpreter during trial and court appearances?

A. He did.   There were two interpreters at all times.

Q. Now, did Mr. Soto have the assistance of a court-appointed interpreter prior to trial, at any proceedings prior to trial?

A. Every time, yes.

Q. Okay. During trial?

A. Yes.

Q. During breaks?

A. Yes.

Q. At the trial?

A. Yes.

Q. And did he communicate with you during those times?

A. Yes.

When defendant testified, he acknowledged he was able to discuss his case with his attorney when they were in court, but he denied his attorney ever brought a Spanish-speaking investigator with him to the jail:

Q․  How about during the trial, did you have discussions with your attorney during the trial?

A. One time when I was in the little room where they always had me wait, he came in, the interpreter came in with him.   That time I tried to tell him to come to the jail with the interpreter.   He said you can't bring the interpreter to the jail.

Q. Aside from that time that you went into the room to speak with your attorney with the interpreter, were there other occasions during the trial that you spoke with your attorney?   And I'm talking about even if it is a matter of minutes, but I want to know if there were other occasions when you spoke with your attorney during the trial.

A. There were times in the very courtroom.

Q. Okay. And approximately how many times would you say?

A. Approximately two or three times, but it was very rapid.

Q. Was this before the court proceedings or after the court proceedings?

A. This was during.

Q. During the court proceedings?

A. During the proceeding in the courtroom.

․

Q. Did your trial attorney ․ ever come to see you at the correctional center with an investigator from the public defender's office that your attorney used as an interpreter?

A. Never.

Q. Even one time?

A. No, never.   He never came with anybody;  never.

The trial court set forth its reasons for denying defendant's PCR petition in an oral decision.   The judge's findings and conclusions included the following:

I have listened to the testimony of Mr. Soto, I've read his application, and I would have to say, as I did at the onset, his allegations ․ [are] very general.   He never ․ came to see me;  he never gave me any advice and as a result he was not my attorney and he was, therefore, ineffective.   The word that he used, for the most part, was outside of court he never ․ conferred with me outside of a couple times in the presence of [co-defendant] Mr. Robles.

Now, [defense counsel] testified.   He said I was a defense counsel for eighteen years.   I was Mr. Soto's attorney.   I was given the case as a pool attorney for the public defender's office after indictment, prior to trial, sometime in 1997.   Obviously, this is a case that, as a result, is more than ten years ago, close to eleven.

He said in his testimony, according to my notes and recollection, I discussed the case with him to prepare a defense at the Mercer County Jail. He said most of the time it was at the jail or there were many times I talked to him in court whenever there was a motion or a status conference.   He said there were a number of different motions.   He said, [w]e had discussions about the case.

He said, I had a Spanish-speaking investigator, there was only one over there in the public defender's office, and his words were, generally, he was always there with me.

․

Frankly, I have to say that I believe that [defense counsel] met with his client every day in court with the help of an interpreter for at least, at the minimum, every day in court.   That is what the attorneys do.   He also said that I did discuss the case with him to prepare a defense and I met him at the Mercer County Jail. I cannot find, with all due respect, that [defense counsel] would lie about that.   I mean, he has an obligation to defend his client.   He has got a very bad case to defend.   Why he would characterize it as a weak case defies the evidence.

He said, I had a Spanish-speaking investigator.   Where did that come from?   Completely out of the mind of [defense counsel], or was it true?   It seems to me that since we did have a Spanish client facing serious consequence-serious charges, that a Spanish-speaking investigator would have been provided for at least serious occasions, although maybe not every occasion.   But, certainly, this Court provided two interpreters, and in court [defense counsel] said, [e]very time we were there, we communicated about the case.

Now, even if [defense counsel] may have been deficient, and I don't find that he was, and I say that clearly, but even if he was, I don't find that the result would have been any different because the evidence in this case was overwhelming on these matters.   That was decided not just by me in my original PCR application subject to this hearing ․ the Appellate Division said so as well on the direct appeal.

With all due respect to the application, I deny it.   I don't believe that ․ either prong of the Strickland case has been demonstrated to the level that would allow me to make a finding, first, that there was ineffective assistance of counsel, and, secondly, to allow me to find that as a result thereof this defendant was deprived of a right to a fair trial.

The scope of our review is limited.  “Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.”  State v. Locurto, 157 N.J. 463, 474 (1999);  see also State v. Elders, 192 N.J. 224, 244 (2007) ( “An appellate court ‘should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy.’ ”) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

In the present matter, we conclude from our review of the record that the PCR court's findings and conclusions are adequately supported by sufficient credible evidence.   Moreover, the court correctly applied the governing legal principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984);  United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L. Ed.2d 657 (1984);  and State v. Fritz, 105 N.J. 42 (1987).   We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Kelly on June 19, 2008.

Affirmed.

PER CURIAM