Opinion
DOCKET NO. A-1825-14T3
06-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT N. SHAVER, III, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa.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, Atlantic County, Indictment Nos. 06-10-2268, 06-09-2106, 06-08-1828 and 07-01-0126. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm, substantially for the reasons set forth by Judge Albert J. Garofolo in his written opinion.
Defendant entered a guilty plea pursuant to a plea agreement to one count of first-degree aggravated manslaughter, one count of first-degree robbery, two counts of second-degree robbery and one count of third-degree receiving stolen property. On direct appeal, we rejected his argument that the factual basis for his guilty plea was inadequate and affirmed his conviction and sentence in an unpublished opinion. State v. Shaver, Docket No. A-2005-10 (App. Div. Feb. 20, 2013).
In his PCR petition, defendant argued his counsel was ineffective because he cajoled him into pleading guilty and failed to retain an appropriate expert to conduct neurological testing to determine whether the effects of possible brain damage would support a psychiatric defense that would reduce criminal responsibility. He argued the errors of his counsel were so egregious as to relieve him of any burden to show actual prejudice. He also raised several points pro se that were incorporated into the PCR brief.
Judge Garofolo wrote a comprehensive opinion in which he addressed each of defendant's arguments. As to defendant's claim of ineffective assistance regarding the failure to secure neurological testing, Judge Garofolo observed that defendant's first attorney diligently pursued the possibility of a defense based upon a head injury defendant suffered when he was an infant. She engaged a psychiatrist, Dr. Daniel Greenfield, to opine regarding defendant's competency to stand trial.
Dr. Greenfield prepared an "evaluation report" which, he stated, "should be considered a work in progress, and not as [his] final opinion." He explained that "further diagnostic evaluations" were required to assess "the potential role of brain damage" before he could form an opinion, and that such an effort was hampered "because of Mr. Shaver's purported amnesia for the events leading up to the offenses and charges in question." He noted that without further testing, he could not "say with a degree of probability whether or not he is malingering . . . with regard to his reported lack of memory for these events." "[A]cknowledging the possibility that Mr. Shaver is malingering about his lack of memory for these events," Dr. Greenfield stated defendant's inability to discuss the events with counsel made him unable "to participate with counsel in an adequate presentation of his defense." Thus, Dr. Greenfield's conclusion that defendant was not competent to stand trial was inextricably tied to his claimed amnesia. Dr. Greenfield stated he would not be competent to stand trial "as long as his reported amnesia for and vague description of the incidents in question remain."
The discharge summary for the injury defendant suffered as an infant states he was eight months old when he fell out of a shopping cart and hit his head on the floor. He was unconscious for approximately ten minutes before he arrived at the emergency room, but did not have convulsions or vomit. Upon physical examination, he was described as "[a]lert, active playful infant boy who was not in acute distress." There was no external evidence of injuries on his head and an otherwise unremarkable physical examination. Throughout the approximately forty hours he was hospitalized, all vital signs were stable.
The Public Defender's Office denied requests for the testing recommended by the psychiatrist. One email explained defendant's requests were denied because "they rest on speculation unsupported by any facts whatsoever and those unsupported allegations [will] not assist him in achieving his litigation goal of obtaining treatment, assuming that that goal is attainable."
Judge Garofolo reviewed Dr. Greenfield's report in detail and within the context of defendant's active involvement in all court proceedings. He observed,
[D]efendant was at all times confrontational if not combative with both the court and counsel . . . . He was, in a word, "no shrinking violet." There is indeed no scintilla of evidence that he was controlled by counsel. Rather it appears that he cajoled counsel and the prosecutor's office into what was ultimately a very beneficial plea agreement, considering the plethora of serious charges he faced vis-à-vis the ultimate outcome.
Judge Garofolo also noted it was apparent from the transcript of defendant's guilty plea that "he displayed an acute understanding of his situation," even correcting the court as to the period of parole ineligibility for a twenty-five year sentence. Finally, Judge Garofolo found no cause to criticize the Public Defender's Office for declining to pursue additional neurological testing:
Given the "wishy-washy" report of Dr. Greenfield, most especially the aspect which suggests that the defendant may be malingering, it is also not surprising that the office of the public defender did not agree to fund the testing required both then and now to support his present petition. In particular, his claim of amnesia to Dr. Greenfield is equally impeached by his recollection of the events as displayed in colloquy with the court at the time of his guilty plea.
Our opinion includes an excerpt from defendant's plea colloquy that similarly shows defendant had full recall of the events underlying his guilty plea. His responses were expansive, not limited to "yes" and "no" answers to leading questions, and included the following admissions: "I got out of the car, I grabbed her purse with force and Mrs. [P.] fell to the ground . . . ."; and "I believe my intention was to grab the purse and once I did that . . . I grabbed it with force and she fell and death was a result of that incident . . . ." Shaver, supra, No. A-2005-10 (slip. op. at 2-3).
In his appeal, defendant presents the following arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE FAILURE BY THE PUBLIC DEFENDER'S OFFICE TO PROVIDE DEFENDANT WITH THE ANCILLARY SERVICES RECOMMENDED BY DR. GREENFIELD WAS THE RESULT OF A CONFLICT OF INTEREST BETWEEN DEFENDANT AND THE PUBLIC DEFENDER'S OFFICE.
POINT III
THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
In a supplemental pro se brief, defendant raises these arguments:
POINT I
THE PCR COURT ERRED NOT TO GRANT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DEFENDANT'S PSYCHOLOGICAL PROFILE IN ITSELF CONSTITUTED A NEGATION AND/OR MITIGATION OF THE OFFENSES, THEN, IF SO, THE VARIOUS TRIAL AND APPELLATE LEVEL COUNSEL(S) WERE DEFICIENT AND
THE DEFENDANT SUFFERED ACTUAL PREJUDICE.
POINT II
THE (PCR) COURT ERRED NOT TO VACATE THE JUDGEMENT [SIC] DUE TO TRIAL COUNSEL(S) ADVICE TO DEFENDANT TO PLEAD GUILTY WILE [SIC] DEEMED INCOMPETENT TO STAND TRIAL BY FORENSICS PHYSIOLOGIST [SIC] DR. DANIEL P. GREENFIELD, MD, MPH, MS ALSO TOTALLY DISREGARDING THE DOCTOR'S RECOMMENDATIONS FOR FURTHER TESTING TO COMPLETE THE PSYCHIATRIC EVALUATION TO ESTABLISH THE AFFIRMATIVE DEFENSE PER 2C:1-13 DUE TO MONETARY RESTRICTIONS WAS ACTUAL PREJUDICE WHICH CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND VIOLATES 18 U.S.C. 3006 A (e)(1)2000.
POINT III
IN DEFENDANT'S PRO-SE BRIEF APPELLANT RAISED A PLETHORA OF CLAIMS WHICH MAY CUMULATE INTO ERRORS OF A CONSTITUTIONAL MAGNITUDE.
We are not persuaded by any of these arguments and affirm. 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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) 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, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, Judge Garofolo correctly concluded that an evidentiary hearing was not warranted, see State v. Preciose, 129 N.J. 451, 462-63 (1992), and properly denied his petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION