Opinion
DOCKET NO. A-3711-12T4
05-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLIFTON TERRICK TAYLOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ashley L. Behre, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-08-1975.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ashley L. Behre, Legal Assistant, on the brief). PER CURIAM
Defendant, Clifton Taylor, appeals from the order of the Law Division denying his post-conviction relief (PCR) petition claiming ineffective assistance of counsel, both when he entered his guilty plea on October 14, 2008, and on the initial PCR application. For the reasons set forth below we affirm the court's denial of his petition.
On August 27, 2008, a Monmouth County grand jury indicted defendant for first degree armed robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1); and fourth degree certain persons not to have weapons, N.J.S.A. 2C:39-7a(1).
Pursuant to a plea agreement on October 14, 2008, defendant pleaded guilty to the charge of armed robbery. The court dismissed the balance of the charges in accord with the plea agreement. On November 21, 2008, the sentencing judge imposed a ten year term of imprisonment subject to an eighty-five percent period of parole ineligibility required under the No Early Release Act. N.J.S.A. 2C:43-7.2. This sentence was to run concurrently with any violation of parole arising out of defendant's prior conviction of possession of a controlled dangerous substance in North Carolina.
On August 9, 2011, defendant filed a pro se PCR petition. Counsel thereafter filed a brief in support of defendant's petition alleging ineffective assistance based on the failure of trial counsel to request a psychiatric examination prior to the plea. On November 30, 2012, the court heard argument and denied the petition because the claim failed to meet the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
As the factual foundation for his plea, defendant admitted that he used a BB gun to rob a gas station attendant of $215.00. Police found him shortly after the robbery with the money and gun in his possession. When asked by the trial court why he had committed the robbery, defendant stated that he had taken his cousin's watch and phone and told her he would make it right and get the money back to her.
While in jail, defendant received mental health services. The medical records document that he heard voices. He was given Haldol, an anti-psychotic drug. At the plea hearing on October 14, 2008, the following exchange took place between defendant and the court:
Q. What you do here today has a finality to it. Are you on any medication today as you stand before me?
A. Um - - Haldol, a cocigenic (sic).
Q. All right. And can you still think when you have those medications? Does it interfere with your ability to understand what I'm saying to you?
A. No.
Q. Do you understand what you're doing here today?
A. Yes.
The court then asked defendant's counsel if he had requested a psychiatric evaluation of the defendant. Defense counsel replied:
No, sir, because when we read the information from the police he stated very clearly he went home, he planned it, he sat down, and he figured out he was going to take a gun, he was going to go rob the station because the man was going to be there by himself. It was clear as could be he knew what he was doing.
One week after this exchange at the plea hearing, defendant's medical records included the following observations: "Seen for monthly visit. Reports no complaint at this time. Claims meds are working well. Denies voices or thoughts... non-psychotic. Smiling at times. Good eye contact."
At the sentencing hearing, the trial court and counsel again discussed the decision not to obtain a mental health evaluation. Defense counsel stated that the possibility of a psychiatric defense had been considered. Counsel had determined that because defendant's statements to the police showed the robbery was premeditated and defendant had described his motive, a psychiatric defense would not aid defendant.
Defendant's pro se PCR application included no affidavits or certifications in support of his claim. PCR counsel filed a memorandum of law setting forth alleged facts and law, but provided no affidavits to support the facts in the brief, according to the court. The court denied the PCR application after oral argument.
Defendant argues the following single point on appeal:
POINT ONE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THEREFORE THE LOWER COURT ORDER MUST BE REVERSED
PCR counsel argued that plea counsel had failed to provide effective assistance to defendant by failing to obtain a psychiatric evaluation prior to the plea. This appeal raises, for the first time, the argument that PCR counsel assigned to defendant failed to provide effective assistance of counsel on the PCR application. Appellate PCR counsel seeks an order reversing the trial court's order denying the PCR petition. The appropriate relief, if it were legally required, would not be to reverse the trial court's order upholding the plea at this stage, but to remand to allow a new PCR application to be filed by new counsel before the trial court. See State v. Rue, 175 N.J. 1, 19 (2002) (remanding to the trial court for a new PCR hearing).
Under the facts of this case, neither reversal nor a new petition are required under the law. The same standards for finding ineffective assistance of counsel apply at the plea, trial or PRC level of representation. At each step, counsel must provide effective assistance to defendant to protect his Sixth Amendment rights under the United States Constitution. The two prong Strickland test first requires defendant to prove by a preponderance of the evidence that counsel was ineffective. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This means that the representation by counsel fell outside the "wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Second, defendant must show that there is 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the trial court PCR counsel failed to provide any affidavits from defendant or other persons to support the facts set forth in the memorandum of law provided to the court. Counsel did attach some of defendant's medical records. The court chastised defense counsel on the record for the deficient filing. The first prong of Strickland, requiring that the performance of counsel fell outside the range of reasonable professional assistance, is met, but the second prong of the Strickland test is not.
The court declined to vacate the plea and grant the PCR application after reviewing the plea transcript and the sentencing transcript. In addition, even without the appropriate affidavits being filed, the court stated that it had reviewed and considered the facts set forth in the memorandum of law filed by defense counsel. As a result, the deficiencies would not have changed the outcome of the PCR application. There was no basis for the court to find ineffective assistance of counsel at the plea level based on the factual contentions of defendant in this application or before the trial court. As shown in the transcripts, plea counsel, the court and defendant discussed the reasons for not requesting a mental health evaluation before the plea and again before the sentencing. We do not second guess objectively reasonable strategic decisions. State v. Arthur, 184 N.J. 307, 318-19 (2005). There was no basis for an insanity defense and no evidence that defendant's guilty plea was not knowing and voluntary.
As for the effectiveness of representation by PCR counsel, the failure to file an affidavit supporting the factual claims in the brief did not change the outcome because, as the court stated, "[d]efendant's petition must also be denied because even if the [c]ourt considers the facts alleged in the legal memorandum, [d]efendant's petition fails to satisfy the Strickland standard." Neither the representation of plea counsel or PCR counsel deprived defendant of his Sixth Amendment rights under the Strickland test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION