Opinion
DOCKET NO. A-0813-12T3
07-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY D. MORGAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-09-0983.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
On August 25, 2009, defendant entered a guilty plea to first-degree robbery pursuant to a plea agreement in which it was agreed the State would recommend a sentence one degree lower than the offense charged, a term of six years, eighty-five percent of which was a parole ineligibility period.
At the time of his guilty plea, the judge asked defendant if he was under the influence of drugs or alcohol and whether he was "being treated for any type of mental illness or any type of psychological problems." Defendant answered, "No, sir," to each of these questions.
In providing a factual basis, defendant admitted that he took eight boxes of Tylenol from a store and left the store without paying for them. When two loss prevention officers approached him and identified themselves, he ran. Defendant admitted that at one point, he turned around, acted as if he was grabbing a firearm and told them, "I'll shoot your ass."
When defendant appeared for sentencing on January 14, 2010, his counsel advised the court,
Your Honor, my client's just advised me he wishes to submit to the Court an application to withdraw his plea. He advises me that he's been since diagnosed with depression and he's been prescribed Zoloft and Sinequan. He doesn't feel he was in a right state of mind to enter the plea at the time that he did.The trial court denied the oral application, noting it was not supported by any information. In a colloquy with the judge, defendant stated he had been incarcerated since October 2009 and that, after his first appearance on another charge, he "started getting depressed and everything about what's going on and [he's] been on Sinequan and Zoloft for like four months right now . . . ." After the court denied defendant's oral application to withdraw his guilty plea, defense counsel attempted to negotiate a plea agreement with the State to incorporate the new charge. The effort proved unsuccessful and defendant was then sentenced in accord with the plea agreement.
Defendant filed a direct appeal which was subsequently dismissed.
Defendant filed a PCR petition on February 22, 2011, in which he argued that he was denied the effective assistance of counsel because: (1) a mental defect prevented him from forming the mental state necessary for the crime of robbery; (2) his intoxication at the time of the incident constituted a defense; (3) trial counsel was ineffective for failing to properly investigate his case; (4) his plea was not knowing and voluntary because he was under the influence of prescription medications at the time of the plea; and (5) trial counsel was ineffective in that he permitted defendant to plead to robbery without a sufficient factual basis.
A brief and amended petition was submitted on behalf of defendant. In this brief, defendant raised additional claims of ineffective assistance of counsel:
(I) Counsel cajoled his client into pleading guilty; these actions constitute ineffective assistance of counsel.In support of his petition, defendant provided a certification that included the following assertions:
(II) The plea was not made knowingly and/or voluntarily.
(III) Counsel failed to file all appropriate motions.
(IV) As a result of ineffective assistance of counsel, in particular the failure to investigate and consider potential defenses, petitioner was deprived of a fair trial.
(V) Petitioner should have been allowed to withdraw his guilty plea and counsel's failure to so argue constitutes the ineffective assistance of counsel.
(VI) Appellate counsel was ineffective.
(VII) The matter is replete with error resulting in the lack of effective counsel guaranteed by the New Jersey and United States' constitutions.
(VIII) The errors of counsel in this matter were so bad that actual prejudice need not be shown.
(IX) All points raised by petitioner in any and all prior submissions to the court are heretofore incorporated by reference into this supplemental brief.
1. I am the petitioner in the above captioned case.
2. I was represented on the above matter by Anthony Rizzo, Esquire, who was assigned to my case by the Office of the Public Defender in Burlington County.
3. I advised Mr. Rizzo that I was not guilty of any possible first degree charges and that I wanted to take the case to trial. I told him this from the first time we met. I also advised the investigator who interviewed me the same thing. The investigator interviewed me in April, 2008.
4. Mr. Rizzo told me that I had no choice but to take a deal. He said that he would not try a case in which the person turned down a good deal and was looking at a life sentence.
5. The offer at that time was 12 years NERA. I did not want the deal.
6. At some point the offer was reduced to 6 years NERA. Some form was put in front of me which I refused to sign indicating that I wanted to go to trial. The trial date was set for sometime in August 2009.
7. I kept telling my attorney to get my medical records to show I was on Zoloft and Sinequan and also to interview the security personnel so that he could see that they were lying and that I never pretended or acted or said that I had a weapon. To the best of my knowledge, he did neither.
8. I came to court for the trial knowing that my attorney had no interest in trying this case and that he had done nothing to
prepare for it. I took the deal on the date of the trial because he [sic] inactions basically forced me to do that. He told me that I had to say that I looked and acted like I had a gun so I didn't argue with him when he asked me those questions during the plea.
9. In January, 2010, at my sentencing hearing, I asked the Judge to vacate the plea and let me go to trial. He refused and I was sentenced.
10. I filed an appeal. The appellate attorney told me that the appeal wasn't worth anything and that I should just file a PCR. He told me that a successful appeal would not allow me to take my case to trial. So, I withdrew the appeal and filed the PCR.
Defendant also submitted a certification from Ana Matias, an investigator employed by the Office of the Public Defender. She stated she interviewed defendant on April 24, 2008, and reported, "he advised me that he had been diagnosed with depression and was on Zoloft which he was receiving at the Burlington County Jail."
The PCR court denied defendant's petition by order dated June 29, 2012. Defendant presents the following issues for our consideration in his appeal.
POINT I
DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.
A. Counsel's Failure to Investigate.
B. Defendant's Plea was not Voluntary and Knowing.
C. The Failure to Move for Dismissal.
D. Ineffective Assistance of Appellate Counsel.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A PCR court should grant an evidentiary hearing if, viewing the facts in the light most favorable to a defendant, the defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). "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." State v. Marshall, 14 8 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
"Post-conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an opportunity to relitigate cases already decided on the merits, R. 3:22-5." Preciose, supra, 129 N.J. at 459. Accordingly, the procedural bars embodied in Rule 3:22-4 and Rule 3:22-5 exist to prevent issues that could have been litigated on appeal or issues that previously have been litigated from being raised in a PCR setting. However, allegations of ineffective assistance of counsel that are based on events that occur outside the record "are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Preciose, supra, 129 N.J. at 460; see also State v. Mitchell, 126 N.J. 565, 585 (1992).
Defendant argues that the PCR court erred in applying the procedural bar to some of his claims. He filed a direct appeal that was ultimately dismissed. The only information regarding this circumstance in the record is in his certification, in which he states his appellate counsel told him "the appeal wasn't worth anything and that [he] should just file a PCR." According to defendant, he withdrew his appeal because the appellate attorney told him "a successful appeal would not allow [him] to take [his] case to trial." The question before us is whether, under the circumstances here and without an evidentiary hearing, enforcement of a procedural bar would work a fundamental injustice. See R. 3:22-4(a)(2).
In State v. Martini, 187 N.J. 469, 481 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007), the Supreme Court observed that "there is no bright-line test to determine when a court should apply the fundamental-injustice exception," and quoted the following applicable principles:
[i]n defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise "wrought a miscarriage of justice for the individual defendant." The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, "to establish injustice there should at least be some showing that * * * [the alleged violation] played a role in the
determination of guilt. * * * To conclude otherwise would exalt form over substance."
[Id. at 481-82 (quoting Mitchell, supra, 126 N.J. at 587 (alterations in original) (citations omitted)).]
The central theme in defendant's petition was that he was guilty of a shoplifting charge and not the first-degree robbery to which he pled guilty. He maintains he did not have a weapon or threaten the loss prevention officers in any way. If that were the case, defendant would not have been guilty of first-degree robbery. He does not contend, however, that any exculpatory evidence exists to support this assertion. Instead, he merely states that, if his trial counsel had interviewed the loss prevention officers, "he could see that they were lying."
Defendant also argues that, even if he made the gesture and statement attributed to him, this evidence was insufficient to instill a reasonable belief in the security officers that he possessed a firearm. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
His argument thus falls short of a claim that counsel was ineffective for failing to interview a witness who would have provided exculpatory evidence, which would have to be supported by a certification pursuant to Rule 3:22-10(c) to provide a basis for an evidentiary hearing. As he has presented no facts that could be used to impeach the credibility of these witnesses, the claim that an interview would have shown the witnesses were lying rests upon pure speculation and is insufficient to warrant an evidentiary hearing.
Defendant next argues that his guilty plea was not voluntary because it was the product of undue pressure from counsel and because he was under the influence of drugs at the time of the guilty plea.
We first address his contention that he was under the influence of drugs at the time of the guilty plea. We note this assertion is refuted by his testimony at the plea hearing that he was not under the influence of drugs or alcohol. In support of this claim, his certification merely states his medical records show he was "on Zoloft and Sinequan." The medical record provided reflects the dosage ordered on December 23, 2009, and does not show he was prescribed or took any drug on the date of his guilty plea. He has provided no evidence as to the effect of these anti-depressants upon him, or what amount, if any, he took on the day of his guilty plea. He has thus failed to present prima facie evidence to justify an evidentiary hearing on this claim.
Defendant also argues that his plea was not voluntary because his counsel's failure to interview the witnesses and secure the medical records to show his use of anti-depressants effectively coerced him into accepting a plea offer for a six- year term on a first-degree offense so he might avoid a harsher sentence. This argument ultimately fails because defendant has failed to show that an interview of the witnesses would have exculpated him or that the records of his anti-depressant use established a basis for the withdrawal of his guilty plea.
Defendant next argues his counsel was ineffective for failing to file a motion to dismiss the first-degree robbery offense. This argument was rejected by the PCR judge as waived by defendant's guilty plea. See State v. Knight, 183 N.J. 449, 470 (2005). Defendant acknowledges that, to provide a basis for PCR, he would have to show that the motion would be successful. See State v. Fisher, 156 N.J. 494, 501 (1998).
The report by the investigating officer includes statements from the two loss prevention officers who "both" stated,
[A]s they were chasing the accused, the accused reached into his waistband in a motion as if he was grabbing a firearm. He turned to [the loss prevention officers] and stated, "I'll shoot your ass!"The officer then reported that one of the loss prevention officers told him, "at this point, they stopped chasing the accused because they did not want to take a chance if the accused did have a firearm." The only argument defendant made before the PCR court in support of a motion to dismiss this count is that the police report does not mention "the suspect sticking his hand in his pants and simulating a gun."
This argument lacks factual support, as the quoted portions of the police report demonstrate. In addition, the alleged omission does not vitiate the statements attributed to the loss prevention officers which are sufficient to support a charge of first-degree robbery. Accordingly, there is no merit to the argument that counsel was ineffective for failing to file a motion to dismiss this count.
Finally, defendant argues that his appellate counsel was ineffective for advising him to withdraw his appeal. To prevail on this claim, he would have to show, by a preponderance of the evidence, that there was "a reasonable probability" that if appellate counsel had raised an issue on appeal, the result "would have been different." State v. Loftin, 191 N.J. 172, 198 (2007) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). He has, however, failed to identify any issue that would have yielded such a result on appeal.
He also contends that appellate counsel permitted the appeal to be dismissed without his express authorization. This contention is refuted by his own certification, in which he states he withdrew the appeal.
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We therefore conclude that, to the extent that these arguments could have been raised on direct appeal, defendant does not suffer a fundamental injustice from the application of the procedural bar. We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of either trial or appellate counsel within the Strickland-Fritz test. Therefore, an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION