April 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO MEDINA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-03-0307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2006
Before Judges Coburn and R. B. Coleman.
Defendant Julio Medina appeals from an order dated August 12, 2005, denying his petition for post-conviction relief (PCR). We affirm.
On February 26, 1999, pursuant to a plea agreement, defendant pled guilty to two counts of second degree attempted sexual assault, N.J.S.A. 2C:14-2c, and N.J.S.A. 2C:5-1, and one count of third degree aggravated assault, N.J.S.A. 2C:12-1b(5). In furtherance of the negotiated plea agreement, the State agreed to the dismissal of the remaining fifteen counts of the indictment, but recommended a ten-year concurrent sentence, subject to the No Early Release Act (NERA), for the two convictions for second degree attempted sexual assault, and a consecutive four-year sentence for the conviction for third degree aggravated assault. On August 3, 1999, the trial judge sentenced defendant to prison on each of the attempted sexual assault convictions and, in spite of the State's request for ten years, he imposed concurrent nine and one-half year terms, eighty-five percent of which defendant was required to serve before becoming eligible for parole for the two counts for attempted sexual assault to which defendant had pled guilty. The court also sentenced defendant to a consecutive four-year term, based on the conviction for aggravated assault.
Defendant filed an appeal relating solely to the sentence imposed, and on September 13, 2000, this court remanded the matter for reconsideration of the applicability of NERA and for reconsideration of jail credits. On January 26, 2001, the trial court determined that NERA applied to only one of the attempted sexual assault convictions, and the judgment of conviction was amended accordingly. The judge also ruled that defendant was entitled to two-hundred thirty-eight days of jail credit. The original judgment of conviction had only credited fourteen days.
Upon further appeal by defendant, this court entered an order dated February 19, 2002, affirming the sentence and finding that it was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. Thereafter, on June 11, 2002, the Supreme Court denied defendant's petition for certification. State v. Medina, 174 N.J. 40 (2002).
On July 30, 2003, defendant's motion for additional jail time credit was denied, and instead, the court ordered that the judgment of conviction be amended to award a total of sixty-eight days of jail time credit. On June 22, 2004, defendant filed a petition for PCR, at the hearing of which the judge vacated the July 30, 2003 order, and reinstated the two-hundred thirty-eight days of jail credit. A memorializing order, dated August 12, 2005, was entered to that effect. A separate order was entered that same date, denying the remaining relief sought by defendant's PCR petition.
On appeal from that August 12, 2005 order, defendant asserts:
POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED OR HIS SENTENCE MUST BE MODIFIED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO HIS INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.
(A) TRIAL COUNSEL FAILED TO OBTAIN A PSYCHIATRIC EVALUATION SO AS TO ESTABLISH A DEFENSE OF INTOXICATION OR DIMINISHED CAPACITY.
(B) TRIAL AND APPELLATE COUNSEL FAILED TO ADVOCATE FOR THE WITHDRAWAL OF DEFENDANT'S GUILTY PLEA.
(C) APPELLATE COUNSEL FAILED TO RAISE THE ISSUE THAT DEFENDANT'S SENTENCE FOR THE ATTEMPTED SEXUAL ASSAULT CONVICTIONS, WHICH EXCEEDED THE PRESUMPTIVE STATUTORY TERMS AND WAS NOT CLEARLY BASED ON THE COURT'S FINDING OF AN AGGRAVATING FACTOR OTHER THAN A PRIOR CONVICTION, VIOLATED THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
(D) APPELLATE COUNSEL FAILED TO RAISE THE ISSUE OF INSUFFICIENT JAIL CREDITS.
We have considered defendant's arguments in light of the record and find none of them to be of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we make these brief observations.
Defendant contends that he established in the PCR petition a prima facie case for ineffective assistance of counsel in that his trial counsel failed to obtain a psychiatric evaluation so as to establish a defense of intoxication or diminished capacity. In general, intoxication is not a defense, unless it negatives an element of the offense. N.J.S.A. 2C:2-8a.
Intoxication is an affirmative defense where it is not self-induced or is pathological and if by reason of such intoxication, "the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." N.J.S.A. 2C:2-8d. Such intoxication must be proved by clear and convincing evidence. Ibid. "Pathological intoxication" is defined as "intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible." N.J.S.A. 2C:2-8e(3). In this case, defendant voluntarily drank alcohol and he was aware of its consequences.
When establishing the factual basis for defendant's guilty plea, the following exchange took place:
Q: And you got pretty drunk that night, right?
A: Yes, I did.
Q: And you know what happens to you when you get drunk, right?
While defendant now claims that he didn't realize that drinking would "bring [him] here today," he should have been aware that he had a problem with alcohol.
At his sentencing, defendant acknowledged multiple arrests over the course of several years, all stemming from his use of alcohol. The affirmative defense of pathological intoxication was not available to defendant and his circumstances. See State v. Holzman, 176 N.J. Super. 590 (Law Div. 1980) (defense of pathological intoxication is not available where there is no proof that defendant suffered from a severe intoxication which she had no reason to expect and which happened because of some underlying organic condition).
Intoxication may also constitute a defense where the intoxication negates an element of an offense, if there is a "prostration of faculties." State v. Cameron, 104 N.J. 42, 54 (1986). The intoxication must be of an extremely high level, such that the actor is not able to form a purpose. Ibid. "[I]t is not the case that every defendant who has had a few drinks may successfully urge the defense. The mere intake of even large quantities of alcohol will not suffice." Id. at 54 (quoting State v. Stasio, 78 N.J. 467, 495 (concurring and dissenting, J. Pashman)).
Here, defendant was aware of the events at issue and, therefore, it is not likely he could have established an intoxication defense, since he was capable of functioning and forming intent. Certainly, trial counsel's determination not to assert or failure to assert intoxication as an affirmative defense was not evidence of deficient performance or, if so, such deficient performance that there is a reasonable probability that but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). "If counsel does not conduct a substantial investigation into each of several plausible lines of defense, assistance may nonetheless be effective." Strickland, supra, 466 U.S. at 681. Trial counsel's decision to forego a psychiatric evaluation is further supported by the fact that defendant was examined, as part of the sentencing agreement, at the Adult Diagnostic and Treatment Center, and was not shown to be suffering from a diminished mental capacity or to be acting under the guise of intoxication.
Defendant further contends that both trial and appellate counsel failed to advocate for the withdrawal of his guilty plea. Defendant argues he believed he was entitled to a NERA plenary hearing, and when this hearing was not awarded to him, his counsel should have moved to withdraw his guilty plea. A "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.) certif. denied, 66 N.J. 312 (1974)).
Generally, a defendant seeking to vacate a plea must show that he or she was misinformed of the terms of the agreement or that his or her reasonable expectations were violated. Defendant is also entitled to withdraw a guilty plea if the court imposes a harsher sentence than that contemplated by the plea agreement. To vacate his plea, a defendant must show that he or she was prejudiced by enforcement of the agreement. However, the plea should not be vacated if knowledge of the missing conditions would not have affected defendant's decision to plead. The withdrawal of a guilty plea is within the broad discretion of the trial court. [State v. Bellamy, 178 N.J. 127, 134-35 (2003) (internal citations omitted). See also State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004)].
We are satisfied the defendant was not misinformed and the base terms of the sentence -- nine and one-half years, rather than ten -- were even less onerous than those the State agreed it would recommend.
Here, the trial judge took care to ensure that defendant understood every aspect of the plea agreement and gave defendant multiple opportunities not to take the plea. Defendant only expressed a concern over jail credits. The transcript reveals that defendant was made aware that NERA would probably apply, and that the State was going to ask that he serve eighty-five percent of the recommended sentence. There is no evidence that defendant misunderstood any portion of his plea agreement.
An appellate attorney need not advance every argument which the defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed. 2d 987 (1983). "Matters of appellate strategy, like matters of trial strategy, are generally relegated to the discretion of counsel." Caruso v. Zelinsky, 515 F. Supp. 676, 685 (D.N.J.), aff'd in part, vacated in part, United States ex rel, Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982). Counsel decides what issues to pursue on appeal and is not obligated to raise every possible claim. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996). There is no indication that either counsel abused their discretion in deciding against making a motion to withdraw the plea.
Defendant also argues that his appellate counsel failed to raise the issue that defendant's sentence for the attempted sexual assault convictions exceeded the presumptive statutory terms, was not clearly based on the court's finding of an aggravating factor other than a prior conviction, and violated the Sixth Amendment. Defendant urges that any fact, other than a fact of a prior conviction, that increases the penalty for a crime beyond the maximum of the statutorily-prescribed range must be submitted to a jury and proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458, 481-482 (2005). However, Natale was decided August 2, 2005. Defendant had been sentenced six years earlier, on August 2, 1999. His appeals continued through June 11, 2002, when the Supreme Court denied certification. Therefore, defendant's case was no longer on direct appeal when the Natale decision was announced. It is unreasonable for defendant to think that his counsel's failure to have anticipated these changes in the law amounts to deficient performance. Thus, counsel cannot be faulted for failing to raise such an argument.
Finally, defendant's argument that appellate counsel failed to raise the issue of insufficient jail credits is moot since the Law Division judge awarded defendant the two-hundred thirty-eight days of jail credit he sought. Defendant suffered no harm as a result of the interim order that temporarily awarded fewer days of credit.
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