Opinion
DOCKET NO. A-5119-11T1
08-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LLOYD G. EDMISTEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General, Acting Assistant Prosecutor, of Counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE Before Judges Yannotti and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 99-09-1702 and 08-05-01170. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General, Acting Assistant Prosecutor, of Counsel and on the brief). PER CURIAM
Defendant Lloyd G. Edmisten appeals from his denial without an evidentiary hearing of his petition for post-conviction relief (PCR), relating to convictions in 2000 and 2008. He alleged ineffective assistance of plea counsel in the 2000 and 2008 proceedings, and ineffective assistance of appellate counsel in the 2008 proceeding. Because defendant's claims regarding his 2000 convictions were properly barred as untimely, and his claim regarding his 2008 convictions lacks merit, we affirm.
I.
We summarize separately the facts concerning defendant's 2000 and 2008 convictions.
A.
Defendant's 2000 convictions relate to his sexual assaults when age nineteen on two younger teenaged boys. In June 1999, defendant was arrested after the police took statements from two teenaged boys who accused defendant of repeatedly sexually assaulting them over the previous two months. Police questioned defendant, who admitted to committing the sexual assaults, including performing both fellatio and anal intercourse without the consent of the victims.
Defendant's counsel learned that defendant was in special education while in school, and retained Dr. Bruce Frumkin, who prepared a report assessing defendant's "psychological functioning as it pertains to his competency to proceed with adjudication and competency to waive his Miranda rights at the time of police questioning."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Dr. Frumkin reported that clinical testing showed defendant "appear[ed] to have a learning disability" and had "a Full Scale IQ score of 79 (8%), placing [defendant] in the Borderline to Low Average range of intellectual functioning for his age group." The tests also showed defendant's "vocabulary knowledge, verbal abstract reasoning skills, judgment and common sense, and general fund of knowledge about the world" were also "in the average to low average range." Dr. Frumkin reported that defendant claimed he saw "spirits," heard "buzzing noises and mumbling," and had "a number of command hallucinations . . . telling him to do things as innocuous as 'ride a bike' to as significant as having sex."
Dr. Frumkin concluded that defendant "appears to meet [the] criteria for competency to stand trial" because defendant had "a basic appreciation of the charges against him" and of the "range and nature of possible penalties" he was facing, "probably ha[d] the capacity to disclose to his lawyers facts pertinent to the proceedings," could "probably manifest appropriate courtroom behavior," and could "probably testify relevantly as long as questions are phrased simply and he does not feel too stressed." However, Dr. Frumkin concluded that defendant "appeared not to be able to make an intelligent" waiver of his Miranda rights because it was "quite possible, that during the police questioning, [defendant] was not attentive and did not process what he was told."
A grand jury returned Indictment No. 99-09-1702, charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); two counts of third-degree aggravated criminal sexual conduct, N.J.S.A. 2C:14-3(a); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). With the advice of counsel, defendant pled guilty to both child-endangerment charges pursuant to a negotiated plea agreement, in which the State agreed to drop the remaining charges and recommend probation.
At the plea hearing, defense counsel stated that because defendant had difficulty reading, counsel had read to defendant the plea agreement, plea form, and supplemental plea forms for Megan's Law offenders. The court advised defendant of the plea agreement's terms and explained the charges. Defendant confirmed that he understood the charges, then set forth the factual basis for his plea. Defendant stated that, at age nineteen, he repeatedly touched or attempted to touch the penises of his fourteen and fifteen-year-old friends, without their consent. The court found defendant understood the charges and was entering into the plea agreement voluntarily and intelligently, and accepted defendant's guilty plea.
The court sentenced defendant to three years of probation and community supervision for life (CSL). The court also ordered defendant to abide by the provisions of Megan's Law, obtain substance abuse counseling and treatment, and complete a sex offender group treatment program. The judgment of conviction was entered on October 18, 2000. Defendant did not appeal the conviction or the sentence.
B.
Defendant's 2008 convictions relate to the death of nineteen-year-old W.R., who had fatally overdosed in defendant's motel room. Defendant admitted to police giving W.R. a substantial number of Darvocet pills, a pain-killer prescribed to defendant, in order to "loosen him up" so defendant could touch his penis. Defendant was charged under superseding Indictment No. 08-05-01170 with second-degree manslaughter, N.J.S.A. 2C:11-4(b); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(13); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and fourth-degree violation of CSL, N.J.S.A. 2C:43-6.4(d).
The State initially offered to recommend a seven-year sentence with an 85% parole disqualifier and to dismiss the remaining charges in exchange for defendant's pleading guilty to the manslaughter and violation of CSL charges. However, before defendant signed an agreement, the prosecutor and counsel agreed that, because defendant had been on CSL, a conviction for second-degree manslaughter required the imposition of an extended-term sentence under N.J.S.A. 2C:43-6.4(e). The prosecutor altered the initial offer, instead offering a recommendation of a ten-year sentence with an 85% parole disqualifier. Defendant, with the advice of counsel, signed the plea agreement and pled guilty.
Plea counsel preserved this issue for appeal both at the plea and at sentencing.
At the plea hearing, defendant again admitted to giving W.R. "a substantial amount" of Darvocet pills, knowing they could be fatal to W.R. Defendant also acknowledged that he saw W.R. have an adverse medical reaction to the pills, but failed to call for emergency help at that point. Finally, defendant said he understood that, by pleading guilty to the manslaughter charge, he was also guilty of violating his CSL. The court found defendant had knowingly and voluntarily entered into the plea agreement, and accepted his guilty plea.
The prosecutor moved for the imposition of an extended sentence under N.J.S.A. 2C:43-6.4(e). The court granted the State's motion for an extended sentence, finding the aggravating factors outweighed the non-existent mitigating factors. The court sentenced defendant to a ten-year sentence for the manslaughter offense, and a concurrent eighteen-month sentence for the CSL violation, both subject to an 85% parole disqualifier. The judgment of conviction was entered on October 21, 2008.
Defendant filed a notice of appeal, challenging only his sentence. The matter was listed on our sentencing calendar. See R. 2:9-11. Defendant argued that his 2000 plea counsel failed to inform him that CSL would expose him to a potential mandatory extended-term sentence, which he contended made his 2008 sentence illegal. We affirmed, finding the sentence was "not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." State v. Edmisten, Docket A-3064-08 (July 29, 2010).
C.
On January 11, 2011, defendant filed a pro se PCR petition and certification, claiming he received ineffective assistance of counsel in both the 2000 and 2008 proceedings. He was assigned counsel, who filed an amended petition.
On January 24, 2012, the PCR court denied defendant's PCR petition without an evidentiary hearing. In the written opinion accompanying its order, the court ruled that defendant's claims relating to his 2000 convictions were time-barred under Rule 3:22-12(a), and that his claims relating to his 2008 convictions were procedurally barred under Rule 3:22-4(a). The court also found defendant had failed to demonstrate a prima facie case of ineffective assistance of counsel.
Defendant appeals, raising the following arguments:
POINT I: THE COURT BELOW ERRED IN DECLINING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON HIS PCR CLAIMS AND IN DENYING DEFENDANT'S PETITION.
A. STANDARD.
B. DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT HIS 2008 EXTENDED TERM SENTENCE FOR MANSLAUGHTER, AS WELL AS THE 2000 CHILD ENDANGERMENT CONVICTIONS WHICH UNDERLIE THAT SENTENCE, MUST BE VACATED, BECAUSE HE WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE LEGAL REPRESENTATION BY THE PERFORMANCE OF HIS COUNSEL IN THE PROCEEDINGS LEADING TO THE CONVICTIONS IN 2000.
1. Counsel ineffectively failed to assert defendant's incompetency to stand trial and permitted defendant to enter into the plea bargain which produced his convictions even though he was in possession of an expert report which
indicated that defendant was not competent to enter the pleas or stand trial.C. DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT HIS 2008 MANSLAUGHTER CONVICTION MUST BE VACATED BECAUSE HE WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE LEGAL REPRESENTATION BY POOL COUNSEL.
2. Counsel was unconstitutionally ineffective in permitting defendant to plead guilty without moving to suppress defendant's inculpatory statements despite the expert findings of Dr. Frumkin, which established that defendant lacked the capacity to waive his right to remain silent or his viable claim that the statement was inadmissible.
3. Counsel was unconstitutionally ineffective in failing to advise defendant fully and accurately regarding the consequences of a violation of the community supervision for life condition of his sentence.
1. Pool counsel was unconstitutionally ineffective in permitting defendant to plead guilty to manslaughter without advising him that there was insufficient evidence of the charge and allowing him to plead guilty with a factual basis which could not sustain the charge.D. DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT HE WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
2. Pool counsel was unconstitutionally ineffective in preventing defendant from accepting the State's plea offer of seven years imprisonment by erroneously concluding that the offered sentence was illegal.
POINT II: THE PROCEDURAL BARS TO POST-CONVICTION RELIEF DID NOT APPLY.
A. TIME-BAR.
B. BAR TO GROUNDS NOT ASSERTED IN PRIOR PROCEEDINGS.
III.
To show ineffective assistance of trial or appellate counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. In the context of a guilty plea, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (quotation marks omitted).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid.; accord R. 3:22-10(b).
If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
IV.
The PCR court properly denied defendant's claims regarding his 2000 convictions because his petition was untimely. See State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Rule 3:22-12(a)(1) has long provided that "[n]o petition shall be filed . . . more than 5 years" after the entry of the challenged judgment of conviction, absent excusable neglect. Further, before defendant filed his PCR petition, Rule 3:22-12 was amended to require a defendant to show "a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). Under the amended rule, "[t]hese time limitations shall not be relaxed, except" as provided in Rule 3:22-12. R. 3:22-12(c); see R. 1:3-4(c).
"[A] procedural rule 'is in general to be deemed applicable to actions pending on its effective date.'" State v. Reevey, 417 N.J. Super. 134, 148 n.2 (App. Div. 2010) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973)), certif. denied, 206 N.J. 64 (2011); see Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304-05, (App. Div. 2005); see also State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012).
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For defendant's 2000 convictions, the judgment of conviction was entered on October 18, 2000. Under Rule 3:22-12(a)(1)'s five-year limit, defendant had until October 18, 2005, to file his PCR petition with respect to his 2000 convictions. Defendant did not file his PCR petition until January 11, 2011, over five years beyond the five-year limit.
Defendant contends that the five-year limit is inapplicable because his claims relating to his 2000 convictions were, in essence, challenging his 2008 judgment of conviction. Defendant claims his contentions regarding his 2000 convictions "go to the historical facts" underlying his 2008 convictions, which is the "primary" judgment of conviction for which he is seeking PCR.
However, defendant seeks to void his 2000 convictions, including his sentence to CSL. The validity of that sentence is the only pertinent connection between his 2000 convictions and his 2008 claims. Defendant was required to challenge that sentence or the child endangerment convictions within five years of the judgment of conviction, R. 3:22-12(a), even if the convictions or sentence were later used to enhance the charges or sentences for a subsequent crime. See State v. Wilkerson, 321 N.J. Super. 219, 221-22 & n.1 (App. Div.), certif. denied, 162 N.J. 128 (1999). Moreover, "the State would be significantly prejudiced if now forced to" prosecute defendant for crimes committed more than fifteen years ago. State v. Milne, 178 N.J. 486, 492 (2004).
Defendant, relying on Dr. Frumkin's report, also argues that his cognitive impairments were sufficient to establish excusable neglect. However, defendant cannot rely on conclusory assertions to establish excusable neglect. See State v. Mitchell, 126 N.J. 565, 577 (1992), State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.), certif. denied, 170 N.J. 208 (2001).
Defendant fails to specify how his cognitive impairments prevented him from timely filing a PCR petition within the five-year limit. See State v. D.D.M., 140 N.J. 83, 100 (1995). He must do more than show that "he lacks sophistication [to] satisfy the exceptional circumstances" requirement. State v. Murray, 162 N.J. 240, 246 (2000); see State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (finding a misunderstanding of Rule 3:22-12 does not constitute excusable neglect), certif. denied, 145 N.J. 373 (1996). As the PCR court noted, we have held that a defendant's "conclusory statement in his [PCR] certification that he has difficulty reading and writing," and was thus unaware "that he could move for post-conviction relief" earlier, "does not establish excusable neglect." State v. Cummings, 321 N.J. Super. 154, 166 (App. Div.), certif. denied, 162 N.J. 199 (1999). Indeed, we have agreed that a defendant's "purported low IQ" does not establish excusable neglect. State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (finding), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Moreover, Dr. Frumkin found that, despite defendant's "[b]orderline to [l]ow [a]verage" IQ, defendant was competent to stand trial and was generally able to understand his rights. Dr. Frumkin's concern was that defendant needed time and a low-stress environment to process those rights. Defendant provides no evidence he did not have such an environment, or adequate time to file his PCR petition within the five-year period.
Additionally, defendant cannot show a reasonable probability of fundamental injustice because he has not established a prima facie case of ineffectiveness regarding any of his three claims relating to his 2000 convictions.
A.
Defendant's first claim is that counsel was ineffective for failing to argue he was incompetent to stand trial. However, the report of the defense expert, Dr. Frumkin, concluded defendant was competent to stand trial. Indeed Dr. Frumkin opined that defendant had "a basic appreciation of" both the "charges against him" and the "range and nature of possible penalties" he was facing, and could "probably" disclose to his lawyers facts pertinent to the proceedings. See N.J.S.A. 2C:4-4; State v. Purnell, 394 N.J. Super. 28, 47-48 (App. Div. 2007).
Further, notwithstanding defendant's low IQ and other claimed psychological problems, the plea court found defendant was competent at the time of the plea. See State v. Colon, 3 74 N.J. Super. 199, 222 (App. Div. 2005) (rejecting a defendant's appellate claim of incompetency where that "[d]efendant's mental condition was fully explored at the time of the plea, and the plea was then found to be knowingly, voluntarily and intelligently given"). Thus, defendant cannot show plea counsel was ineffective for failing to raise this argument.
B.
Defendant's second claim is that plea counsel was ineffective for failing to file a suppression motion based on Dr. Frumkin's report, which suggested that defendant "appeared not to be able to make an intelligent" waiver of his Miranda rights. When assessing counsel's failure "'to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his [Fifth] Amendment claim is meritorious.'" State v. Goodwin, 173 N.J. 583, 597 (2002) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986)).
Defendant cannot make such a showing. A low IQ and subnormal mentality is "not dispositive of whether [defendant] understood the meaning of the Miranda warnings," but rather "is merely a factor in the totality of the circumstances to be considered." State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994).
Dr. Frumkin found defendant "can understand his Miranda rights, particularly in a non-stressful situation," and "could define each of the rights." Dr. Frumkin nonetheless concluded that "it is unlikely [defendant] can make an intelligent waiver of such rights," and it was "quite possible" defendant "was not attentive and did not process" the warnings given by the officers. However, Dr. Frumkin did not state that those opinions rose to a reasonable degree of psychological certainty. Moreover, he premised his conclusion on his assumption that the interview with the police was more stressful than the psychological interview and testing, but there was no indicia of stress or incompetency in the transcript of defendant's statement to the police. See State v. Coruzzi, 189 N.J. Super. 273, 323 (App. Div.), certif. denied, 94 N.J. 531 (1983). Indeed, the transcript shows defendant answered all questions with comprehension and clarity, and the trial court found four months later that defendant was competent to stand trial.
Thus, defendant cannot show his suppression claim would have been meritorious. See State v. Irelan, 375 N.J. Super. 100, 113 (App. Div. 2005). "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion, or as in this case, to waive the hearing on the motion to suppress." State v. O'Neal, 190 N.J. 601, 619 (2007); State v. Bell, 388 N.J. Super. 629, 640 (App. Div. 2006).
C.
Defendant's third claim is that plea counsel failed to adequately advise him of the consequences of CSL. Specifically, defendant complains he was not informed of the conditions of CSL until 2003, after the completion of his three-year probationary term, and was not made aware that he would be subjected to an extended sentence for a second-degree manslaughter conviction until after he entered his guilty plea in 2008.
Although the parties do not provide those forms, CSL "is one component of a series of laws that are referred to generally as 'Megans Law.'" State v. Schubert, 212 N.J. 295, 305 (2012) (citing L. 1994, c. 130); see N.J.S.A. 2C:43-6.4. At the June 5, 2000 plea hearing, defendant indicated that the supplemental plea forms for Megan's Law offenders had been read and explained to him, and that he understood them. "[T]hese required forms are 'a crucial document serving to inform the defendant of the consequences of a guilty plea[.]'" State v. Williams, 342 N.J. Super. 83, 91 (App. Div.), certif. denied, 170 N.J. 207 (2001). Defendant agreed with counsel's assertion that he had gone over the Megan's Law requirements, and that defendant understood those requirements.
The plea court asked defendant if he understood that pleading guilty would result in the imposition of CSL, and that if he violated the conditions of CSL he could be found guilty of a fourth-degree crime. Defendant replied: "Yes." Defendant's "'[s]olemn declaration[] in open court'" that he understood the terms of CSL "'carr[ies] a strong presumption of verity.'" State v. DiFrisco, 137 N.J. 434, 452 (1994) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)).
Moreover, defendant admits that, upon completion of his three-year probationary term in 2003, he signed a two-page form detailing the conditions of his CSL. Defendant's failure to contest his CSL sentence for an additional eight years "belies [his] assertion that the sentence did not meet [his] reasonable expectations." See Williams, supra, 342 N.J. Super. at 92.
The PCR court properly rejected defendant's claim that plea counsel was obliged to inform him of the potential for sentencing enhancement in the event he pleaded guilty to criminal conduct in the future. Wilkerson, supra, 321 N.J. Super. at 227. "There is no constitutional requirement for such advice. It involves only a collateral issue. A rule requiring such advice would implicate speculation." Ibid. In any event, this claim was previously litigated in his 2008 appeal. See R. 3:22-5.
Because defendant's claims were lacking in merit, we are convinced the enforcement of Rule 3:22-12(a)'s time-bar would not result in a fundamental injustice.
V.
We turn next to defendant's two claims regarding his 2008 convictions. Defendant first contends, in essence, that his plea to second-degree manslaughter lacked a sufficient factual basis because it was based on the theory that he failed to seek medical attention for W.R., which is not a basis for liability under State v. Lisa, 391 N.J. Super. 556 (App. Div.), aff'd, 194 N.J. 409 (2008). Second, he asserts his CSL did not require imposition of an extended-term second-degree sentence for manslaughter because his sentence could have been reduced to the third-degree range under N.J.S.A. 2C:44-1(f)(2) if the mitigating factors outweighed the aggravating factors.
The PCR court barred defendant's claims because they could have been raised in his direct appeal from his 2008 convictions. We agree to the extent defendant could have raised arguments that the factual basis stated for his plea did not amount to a crime, and that he should have been sentenced for second-degree manslaughter as a third-degree offense. See Mitchell, supra, 126 N.J. at 574, 583-85. No testimony outside the record was necessary to establish those arguments. See id. 585. Insofar as defendant raised those arguments in his PCR petition, they were barred under Rule 3:22-4(a).
A PCR petition is not "a substitute for appeal." R. 3:22-3. "Any ground for relief not raised . . . in any appeal taken [from the conviction] is barred from assertion" in a PCR proceeding unless "(1) the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) [the] enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice[.]" R. 3:22-4(a). This rule is designed to guard against piecemeal proceedings. Mitchell, supra, 126 N.J. at 584-85.
Further, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether in the proceedings resulting in the conviction . . . or in any appeal[.]" R. 3:22-5. In the 2008 proceedings, defendant filed a motion arguing that the indictment should be dismissed because Lisa barred liability for failure to seek medical attention. Appellate counsel raised the argument that defendant should not have gotten an extended-term sentence based on his CSL because he was not warned that he could receive such a sentence. Those arguments were adjudicated adversely to defendant. He is barred from raising in his PCR petition any issue "identical or substantially equivalent to that adjudicated previously [at trial or] on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quotation marks omitted).
Defendant's does raise his arguments in the garb of ineffectiveness. He alleges plea counsel should not have "allowed" him to plead guilty because the State's evidence was based on the failure to seek medical attention, and he contends plea counsel should not have "rejected" the State's initial plea offer for a seven-year sentence because such a sentence was permissible under N.J.S.A. 2C:44-1(f)(2). He then argues appellate counsel was ineffective for not raising his claims. Even if such ineffectiveness claims could not have been raised on direct appeal, as set forth below, they are meritless. For the same reason, imposition of Rule 3:22-4(a)'s procedural bar would not result in fundamental injustice.
A.
Defendant was charged with second-degree manslaughter, which imposes criminal liability if a person "recklessly" causes the death of another. N.J.S.A. 2C:11-4(b)(1); see N.J.S.A. 2C:11-2. "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." N.J.S.A. 2C:2-2(b)(3).
Defendant argues his failure to call for emergency aid cannot sustain a charge of reckless manslaughter because he had no legal duty to act. See Lisa, supra, 391 N.J. Super. at 579-80. He cites Lisa, where the defendant supplied the drunk victim with methadone, the victim passed out in defendant's bedroom, and defendant consistently refused to call emergency services, hoping that she would "sleep it off." Id. at 559-62.
In Lisa, the prosecutor instructed the grand jury that the defendant could be liable for a failure to act because he had a duty imposed by law to provide medical care for the victim. Id. at 564-66. Finding no such duty was clearly imposed by New Jersey law, we affirmed the dismissal of the indictment as not meeting the requirements of N.J.S.A. 2C:2-1(b)(2). Id. at 559, 577, 580. However, we noted that "the State is free to represent the manslaughter charge . . . without reference to" the duty of care, and "express[ed] no view on whether" the State could sustain a charge framing defendant's actions as affirmative conduct rather than a failure to act. Id. at 581.
The Supreme Court, in affirming our decision, "question[ed] whether this matter was ever correctly characterized as a case of pure 'omission' liability." State v. Lisa, 194 N.J. 409, 411 n.3 (2008). The Court added that "there is no reason why this case cannot be represented to the grand jury on a charge of reckless manslaughter based on the totality of defendant's conduct," to consider "whether defendant acted with a conscious disregard of a substantial and unjustifiable risk." Id. at 412. The Court further noted that "N.J.S.A. 2C:2-1(b) premises its discussion of when, and under what circumstances, an omission may support a criminal charge on the assumption that the facts in issue involve 'an omission unaccompanied by action.'" Id. at 411 n.3.
Here, unlike in Lisa, the State did not rely solely on defendant's failure to seek medical attention for W.R. The evidence, including defendant's admissions to police and statements in the plea colloquy, shows that defendant gave W.R. twenty-seven Darvocet pills, with the knowledge that death could result. Thus, when defendant gave the pills to W.R., he knew of the substantial risk of death and acted in conscious disregard of it. See State v. Campfield, 213 N.J. 218, 233 (2013); N.J.S.A. 2C:2-2(b)(3). Accordingly, there was sufficient evidence to sustain the second-degree manslaughter charge, and plea counsel was not ineffective in "allowing" defendant to plead guilty to the charge as part of the lenient plea deal.
Appellate counsel was not ineffective for failing to raise this meritless argument. See State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); see also Jones v. Barnes, 463 U.S. 745, 753-54, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987, 996 (1983). Nor was there any fundamental injustice here.
B.
There is no merit to defendant's argument that plea counsel was ineffective for "preventing" defendant from accepting the State's initial plea offer of seven years. Defendant acknowledges that because he was on CSL, under N.J.S.A. 2C:4 3-6.4(e) the court was required to impose a mandatory extended-term sentence of at least ten years for his second-degree manslaughter conviction. He contends that the court had the authority to reduce the degree of his sentence.
Defendant cites N.J.S.A. 2C:44-1(f)(2), which permits a court to "sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." However, N.J.S.A. 2C:44-1(f)(2) allows the sentencing court to do so only where it "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and where "the interests of justice demands" it. Here, the court found aggravating factors one, two, three, six, and nine applied; that no mitigating factors applied; and that the aggravating factors substantially outweighed the mitigating factors. The court further found the plea agreement was "fair, and in the interests of justice." Thus, there was no basis for the court to reduce the degree of defendant's manslaughter conviction.
The initial plea offer proposed an illegal sentence. "'"[T]he parties cannot negotiate an illegal sentence," and a defendant may not acquiesce in the imposition of an illegal sentence.'" State v. Patterson, 435 N.J. Super. 498, 515 (App. Div. 2014) (quoting State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005) (citation omitted)). Accordingly, plea counsel was not ineffective for "preventing" defendant from accepting a plea to an illegal sentence, and appellate counsel was not ineffective for failing to pursue this issue on appeal.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION