Opinion
DOCKET NO. A-0979-13T2
09-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VINCENT SANBORN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-11-2796. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals the denial of his petition for post-conviction relief (PCR) and raises the following argument:
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE FAILED
TO BE ADEQUATELY PREPARED TO PROFFER ANY EVIDENCE THAT THE DEFENDANT'S MENTAL STATE WAS SUCH THAT HIS CONDUCT SHOULD HAVE BEEN EXCUSED.
We have considered this argument in light of the law and facts, and we affirm.
Defendant was convicted following a bench trial of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count two); two counts of fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (counts three and four); two counts of third-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (counts five and six); and the disorderly persons offense for resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Defendant received an aggregate sentence of eight years with an eighty-five percent period of parole ineligibility.
We affirmed defendant's conviction and sentence. See State v. Sanborn, A-1418-10 (App. Div. May 4, 2012). The Supreme Court denied defendant's petition for certification. See State v. Sanborn, 212 N.J. 459 (2012). He subsequently filed a PCR petition alleging ineffective assistance of trial counsel. Specifically, defendant alleged ineffective assistance of trial counsel based on his claim that his attorney failed to hire an expert to evaluate his drug use prior to the crimes. Defendant's PCR counsel argued that defendant "was high out of his mind when this happened and an expert at the trial level could have [] evaluated his drug use" and testify about defendant's "ability to form the proper mens rea to commit the offense." The motion judge denied the petition and opined, in part, that "[t]he possibility that such an expert report could have made a difference is mere speculation . . . ."
The facts of this case are laid out in our prior opinion and therefore need not be repeated here. We note by way of context that defendant brutally assaulted his wife, and struck her with his fists and various heavy kitchen appliances. With respect to the issue of defendant's ingestion of drugs as affecting his state of mind, we referenced the trial judge's findings and conclusions in his capacity as the finder of the facts following the bench trial:
In finding Sanborn guilty of [the] offense, the trial judge explained his findings with respect to the issue of purposeful conduct as follows:
I find, first of all, that he did not act negligently, nor do I find that he acted recklessly. I find that he acted purposely. It was his purpose to hurt her and to hurt her badly. So much so that I find it's been proven beyond a reasonable doubt that it was his purpose and he attempted to cause
serious bodily injury to [Sarah]. I find him guilty of the second-degree . . . crime.
I do that fully recognizing that serious bodily injury is a high standard to meet, a very high standard to meet. But the legislature had included in that statute the option of finding that it was either caused or attempted to be caused. And I find clearly if somebody . . . slugs a five-foot-two-inch, 135-pound woman in the eye and side of the head and back of the head several times, and then attempts to smash down a microwave on her head, and then hits her with a toaster oven in the head, that is clearly, clearly beyond a reasonable doubt an attempt, a purposeful attempt with substantial steps taken, to cause serious bodily injury. Because you are assaulting the most vulnerable area. Nobody even mentioned the proximity of the temple and that area to where most of these injuries occur[red].
I think we all know and recognize that the vulnerability of the temple area . . . the side of the head, the side of the face is extremely vulnerable.
And not only that, but I think it also could be argued here that she had protracted loss or function of that right eye. But, again, protracted is too dangerous for me to deal with because it's never really been defined in any of our
cases that I've seen. . . . And I'm not willing to base my decision on that. But I am more than willing to base my decision on an attempt to cause serious bodily injury, which clearly was done here.
You can't tell me that you hit somebody that many times in the most vulnerable areas of their body and are not trying to cause serious bodily injury. Even significant bodily injury: "bodily injury, which creates a temporary loss of function of any bodily member or organ or temporary loss of any one of the five senses." . . . You're trying to do more than that when you hit somebody that many times on the side of the head and the forehead.
And absolutely I don't buy this version of the . . . coffee carafe going into the air and projectiling and accidentally causing all these injuries that I see here and leaving the rest of the kitchen intact, particularly the cart.
Although Sanborn contends that he was groggy and had been using drugs, the judge found that Sanborn's mental state was not affected by being suddenly woken up by Sarah or from any alleged drug use. The judge explained:
[W]ell, if someone is that foggy and groggy, how does one recall in vivid detail everything one does immediately after being awakened from that stupor or torpor. And I
do question that somewhat . . . 'cause you can't have it both ways. If you're that fogged out, grogged out, medicated out, stuped out, how do you then, after going back for a nap, remember vividly what argument ensued, what was said by each party and what began the argument?
[slip op. 20-22.]
Defendant now avers that his own testimony about his drug use before attacking his wife, as well as the testimony of the victim, give rise to a "prima facie showing" of his altered mental state and that the matter must be remanded to allow him to seek and obtain an expert opinion. We disagree.
The standards that guide our review are well-known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 52.
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(e)(2) (providing that the court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative").
"To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.").
Importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008); see also R. 3:22-10(e)(3) (providing that no evidentiary hearing shall be held "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success"). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Here, defendant's averment that an expert might support his mens rea defense is a classic "bald assertion" unsupported by any expert submission. Cummings, supra, 321 N.J. Super. at 170. A review of the trial transcript, even from defendant's perspective, does not support defendant's assertion that there is sufficient evidence demonstrating his faculties were so prostrated that he was incapable of forming the requisite intent of any of the charged offenses. See State v. Johnson, 309 N.J. Super. 237, 266 (App. Div. 1998); State v. Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION