March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESSICA FRY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Nos. 01-09-1718-I, 00-01-0173-I, 99-10-1823-I, 99-06-1178-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Wefing and Parker.
Defendant appeals from a trial court order denying her petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant, together with seven other individuals, was charged in a nine-count indictment with second-degree conspiracy, N.J.S.A. 2C:5-2, 13-1(b), 33-4(d); first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree bias intimidation, N.J.S.A. 2C:12-1(e); fourth-degree harassment, N.J.S.A. 2C:33-4(d); third-degree terroristic threats, N.J.S.A. 2C:12-3(a),(b); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a)(3),(5),(7). The charges were based upon an incident that occurred on a night in January 1999 when defendant and her compatriots brutally assaulted a young man who suffered from mental retardation. We do not find it necessary to set forth in this opinion the details of that assault.
On February 26, 2001, after the trial court had denied a motion to suppress filed by two of the co-defendants, defendant entered a plea of guilty to conspiracy, kidnapping and aggravated assault. In the interim between the original charges being presented against defendant, two other indictments were returned, both charging third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a). Defendant entered guilty pleas to both of these charges at the same time. The State agreed to make no recommendation at the time of sentencing but did agree it would not seek an enhanced sentence as a bias crime.
When defendant appeared before the trial court for sentencing, the trial court first merged the conspiracy conviction into the kidnapping conviction and sentenced defendant to fifteen years in prison and a concurrent six-year sentence, subject to the terms of the No Early Release Act, N.J.S.A. 2C:43-7.2, for second-degree aggravated assault. It also sentenced defendant to concurrent four-year terms for the two convictions for aggravated assault upon a police officer. Defendant thereafter appealed, and we affirmed in an unpublished opinion. State v. Fry, No. A-1304-01T4 (App. Div. June 11, 2003).
Defendant filed a timely petition for post-conviction relief, contending that her trial attorney was ineffective for not retaining an expert to determine whether defendant's psychiatric condition would give rise to a valid defense. The trial court, after argument, denied the petition, finding that defendant's attorney made a strategic choice.
A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42, 60-61 (1987), our Supreme Court adopted the Strickland standard.
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).]
Thus, to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, she must show that the actions of her trial counsel were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of the proceedings. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991).
It is clear from the record that defendant has suffered from severe psychiatric problems for most of her life. She first attempted suicide at the age of seven or eight. She has been repeatedly hospitalized for prolonged periods of time due to her psychiatric illnesses.
We recognize, as did the trial court, that there are instances in which a defendant's attorney may make a strategic choice not to pursue a defense under N.J.S.A. 2C:4-1 and 4-2. We are troubled by the trial court's apparent assumption that defense counsel did make such a strategic election in this matter. In our judgment, a plenary hearing should have been held at which defense counsel would testify as to what factors informed the decision not to pursue such an avenue. Only at that juncture could the determination be made whether counsel made a defensible strategic choice in this matter.
The order under review is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.
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