On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-10-1411.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R.B. Coleman and Sapp-Peterson.
Defendant Lorenzo Ross appeals from the April 29, 2005 order of the Law Division denying his post-conviction relief (PCR) motion on the grounds that defendant failed to make a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing and post-conviction relief. We affirm the trial court decision.
On October 23, 1997, defendant was charged in Indictment No. 1411-10-97 with one count of theft, contrary to N.J.S.A. 2C:20-7. Two months later, on December 16, 1997, a grand jury returned a sixteen-count indictment charging defendant with attempted murder, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a)(1) and (a)(2) (Count 1); kidnapping, in violation of N.J.S.A. 2C:13-1(b) (Count 2); aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a) (Counts 3, 4 and 5); sexual assault, in violation of N.J.S.A. 2C:14-2(c) (Count 6); aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3(a) (Count 7); criminal sexual contact, in violation of N.J.S.A. 2C:14-3(b) (Count 8); attempted armed robbery, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count 9); attempted robbery, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count 10); burglary, in violation of N.J.S.A. 2C:18-2 (Counts 11 and 12); aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (Count 13); aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (Count 14); terroristic threats, in violation of N.J.S.A. 2C:12-3*fn1 (Count 15); and possession of a weapon with the purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4(d) (Count 16).
Defendant initially pled not guilty to all of the offenses. However, on May 24, 1999, defendant withdrew his not guilty pleas to the first-degree kidnapping, first-degree aggravated sexual assault, first-degree attempted armed robbery and second-degree aggravated assault, and pled guilty to these offenses. Defendant also retracted his not guilty plea to the one count of receiving stolen property in Indictment 97-10-1411 and pled guilty to that offense as well.
At the time of his pleas, defendant was questioned under oath by defense counsel and the court as to the factual basis for the pleas, the voluntariness of the pleas, his understanding of the pleas, and the consequences of the pleas.
On January 30, 2000, defendant was sentenced to an aggregate thirty-year sentence with a fifteen-year parole disqualifier. Defendant filed a notice of appeal on August 30, 2002. The appeal was withdrawn on February 27, 2003, and an order dismissing the appeal was entered on February 28, 2003. Defendant's first post-conviction relief petition was denied by order dated April 24, 2003, but by order dated August 25, 2003, the court vacated its earlier order and ordered the appointment of counsel to represent defendant in connection with his PCR petition.
In his petition, defendant claimed he should be permitted to withdraw his guilty pleas because he was under the influence of two medications, Elavil and Haldol, at the time he entered his pleas and, consequently, they were not entered knowingly and voluntarily. He also claimed that defense counsel advised him to lie about his background, namely, to say that he had been sexually molested as a child, in order to receive treatment and a sentence to the Adult Diagnostic Treatment Center (ADTC) rather than to state prison. Defendant maintained that had he been free of the effects of the medication at the time he entered his guilty pleas, as he was at the time of the PCR petition, he would have never pled guilty to the charges and would have proceeded to trial on all of the offenses.
The court rejected the arguments and denied defendant PCR relief or an evidentiary hearing. The judge acknowledged that defendant submitted information about the side effects of Haldol and Elavil to support his claim that his pleas were not entered knowingly and voluntarily. The court reasoned that, although there was information disclosed that there are side effects to Elavil and Haldol, there was no evidence that defendant in fact suffered from those side effects at the time he entered the pleas. The judge noted that the record "confirmed that [defendant] understood the plea proceeding and he understood everything that his lawyer had explained to him about the charges." The judge also noted that at the time he entered the pleas, defendant specifically waived any issue related to diminished capacity. The judge concluded that there was "nothing to suggest that [defendant] did not understand any question that was posed to him except now for this assertion made in connection with this proceeding."
Additionally, although the judge rejected defendant's claim that his lawyer told him to lie about his background and doubted whether defendant could "pull the wool over" an experienced criminal trial judge and the staff at the ADTC, "whose job it is to treat people who are likely to re-offend," the judge observed that the sentencing judge did not consider prior sexual molestation as part of the court's consideration of aggravating and mitigating factors. Consequently, the judge concluded that defendant "failed to show how [defense counsel's deficient representation] caused him to be prejudiced in any way under Strickland [v. Washington]."
Defendant filed a timely appeal. He raises for our consideration, ...