April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT DAVIES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cape May County, Indictment No. 97-06-0366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Axelrad and Messano.
Defendant Robert A. Davies appeals from the denial of his petition for post-conviction relief (PCR). He raises three arguments for our consideration.
POINT I THE COURT ERRED IN NOT EXERCISING ITS DISCRETION TO SUA SPONTE INITIALLY TRY THE CASE ON AN INSANITY DEFENSE.
POINT II THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF MANDATING THAT THE MATTER BE REMANDED FOR REARGUMENT.
POINT III THE COURT ERRED IN DENYING THE PETITION.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
We recount the procedural history surrounding defendant's judgments of conviction that were the subject of his PCR petition by relying upon our prior opinion that affirmed his convictions and sentences on direct appeal. State v. Davies, A-3588-00, (App. Div. January 17, 2003).
Defendant was charged on June 24, 1997, in Cape May County Indictment No. 97-06-0366, with two counts of fourth degree criminal sexual contact with himself in April 1997 in the presence of M.M. and J.H., two individuals at least age thirteen but less than age sixteen, while defendant was at least four years older than M.M. and J.H., for the purpose of sexually arousing or sexually gratifying himself and/or to degrade or humiliate M.M. and J.H., N.J.S.A. 2C:14-3b, (counts one and two), fourth degree distribution of marijuana in April 1997, N.J.S.A. 2C:35-5a(1) (count three), and third degree endangering the welfare of a child in April 1997, N.J.S.A. 2C:24-4a (count four).
In Cape May County "Superseding" Indictment No. 00-05-210,*fn1 filed on May 15, 2000, defendant was charged with fourth degree criminal contempt occurring on February 22, 1999, alleging that defendant disobeyed the conditions of his bail on the charges contained in Indictment No. 97-06-366. Those conditions required defendant to reside in Pennsylvania with his mother and attend an outpatient community mental health center there, and not return to reside in Wildwood, N.J.S.A. 2C:29-9.
On December 14, 1999, a pretrial competency hearing was held . . . . During the hearing, defendant made a pro se motion to represent himself and pro se motion to disqualify his attorney on the bases of a conflict of interest "as regards the contempt charge" and ineffective assistance of counsel.*fn2 Thereafter, the judge conducted a two-day hearing to determine defendant's competency to stand trial pursuant to N.J.S.A. 2C:4-4, and, if found competent, his ability to represent himself at trial.
Two psychiatrists, Dr. Nalini S. Naik and Dr. Fidel Salib, testified at the hearing. Both agreed that defendant had a mental condition known as "manic depressive or bipolar disease," but concluded that defendant was nevertheless competent to stand trial. However, Dr. Salib also opined that . . . defendant was not competent to represent himself at such a trial due to his impaired judgment and irascibility . . . . In contrast, Dr. Naik . . . opined that defendant was competent to represent himself during trial so long as he had the assistance of an attorney . . . .
Judge [Carmen] Alvarez determined that defendant was competent to stand trial but concluded that defendant lacked the capacity to make a knowing and intelligent waiver of his right to counsel. The judge further found that defendant would be unable to control himself in the courtroom if he represented himself and therefore denied defendant's motion to disqualify his attorney.
On March 27, 2000, trial commenced on Indictment No. 97-06-366, and defendant was convicted by a jury on both sexual contact counts, as well as the endangering count.*fn3 Two months later, defendant was tried by a jury and convicted of the contempt charge contained in Indictment No. 00-05-210.
On May 26, 2000, Judge Alvarez sentenced defendant to a five-year term of imprisonment with a two and one-half year period of parole ineligibility on the third-degree endangering conviction, and two eighteen-month terms of imprisonment with nine months of parole ineligibility on each fourth degree criminal sexual contact conviction, to be served concurrently with the endangering conviction. Judge Alvarez also sentenced defendant to a consecutive eighteen-month term of imprisonment with a nine-month parole disqualifier for the contempt conviction. The judge imposed the applicable mandatory fines and penalties as well.
On February 8, 2001, defendant filed a premature petition for post-conviction relief that apparently was not acted upon. On January 17, 2003, we affirmed defendant's conviction and sentence and his petition for certification to the Supreme Court was denied on April 28, 2003. 176 N.J. 281 (2003). On June 1, 2003, defendant re-filed his pro se petition for post-conviction relief and sometime between June and August 2006 filed a supplemental petition. Assigned counsel filed a brief in support of defendant's various applications.
On August 30, 2006, defendant and his counsel appeared before Judge Alvarez for a hearing on the petitions. Although incorporating all the pro se applications by reference, defense counsel explained that he intended to argue three main points. First, he contended that trial defense counsel served as a municipal prosecutor in Cape May County and failed to disclose this to defendant. Defense counsel argued this was a conflict of interest for which the attorney had never secured defendant's waiver. He argued this required an evidentiary hearing on the petition.
Defendant also argued that trial counsel provided ineffective assistance because he permitted defendant to be sentenced on the second indictment within days of the guilty verdict, and, as a result, defendant served the entire sentence on the contempt charge before beginning the sentence on the sexual contact and endangering charges. Lastly, defendant argued that his trial counsel should have advanced a "diminished capacity defense" even though it was determined that he was competent to stand trial. Despite asserting this argument, defendant acknowledged that he advised trial counsel that he did not wish to interpose the insanity defense and did not want his expert, Dr. Daniel P. Greenfield, to testify at trial.
Judge Alvarez noted in her oral decision denying defendant's petition that a number of issues he raised in his pro se filings were "based either on a misunderstanding of the facts, o[r] the law, or they simply do not otherwise merit consideration because they do not state grounds on which relief can be granted." Turning to the contention that trial defense counsel was in a conflict of interest because he served as a municipal prosecutor, Judge Alvarez noted that pursuant to the Supreme Court's holding in State v. Clark, 162 N.J. 201 (2000), trial counsel could continue as a municipal prosecutor until the end of 2000 and was not disqualified from his representation of defendant at the time of trial because the Supreme Court did not apply its holding retroactively. Thus, an evidentiary hearing was not required on the petition for PCR. She also determined that there was no showing that trial counsel's "representation was in any way ineffective in the actual trial of the matter." Judge Alvarez also noted that defendant chose not to pursue any psychiatric defense at trial, refused to have Greenfield testify to such, and therefore essentially "did not want any proof presented to the jury about his mental health status." She found any assertion of diminished capacity "would [not] have helped him as . . . a defense at trial." Judge Alvarez denied defendant's petition and on September 19, 2006, issued an order memorializing her denial. This appeal followed.
Defendant's first argument, that Judge Alvarez erred by failing to raise the insanity defense sua sponte, is procedurally barred because it should have been raised on direct appeal and was not. R. 3:22-4. The argument also was not raised by PCR counsel or by defendant in his pro se filings. "[I]ssues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2008). We find no reason to consider, for the first time, this allegation of error by the trial judge.
Defendant next argues PCR counsel was ineffective because he failed "to do the necessary investigation in support of  defendant's claims." In particular, defendant argues PCR counsel failed to find a missing copy of Greenfield's expert report, and was therefore unable to offer same to the judge at the time of the hearing. He argues that because the report has since been located, the matter should be remanded to the trial judge for a hearing on the claim advanced below, i.e., that trial counsel was ineffective because he failed to advance a diminished capacity defense.
We find no merit to this argument. In State v. Webster, 187 N.J. 254 (2006), the Supreme Court defined PCR counsel's obligation as follows:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. [187 N.J. at 257].
Beyond the failure by PCR counsel to find and produce Greenfield's report, defendant articulates no cognizable reason why counsel's representation was deficient. At the time of the PCR hearing, counsel informed the court that he was unable to read Greenfield's report because it was lost. However, why the report was lost or how defendant recovered it for purposes of this appeal are left unexplained.
Establishing a claim of ineffective assistance of counsel requires a showing that (1) counsel's performance was objectively deficient--i.e., it fell outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance prejudiced the defense--i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test).
We will assume arguendo that PCR counsel's failure to produce Greenfield's report was the result of inadequate investigation, though defendant fails to explain exactly how those efforts lacked due diligence. Having now reviewed the report, we can conclude unequivocally that had it been produced before Judge Alvarez, it would have in no way altered the result or required an evidentiary hearing to occur.
In his report, Greenfield stated that based upon his evaluation of defendant and review of all the appropriate materials, his opinion was that "[defendant's] mental state and psychiatric/neuropsychiatric/addiction medicine condition at the time [of the offenses] would not support a legal/Court/determination that he was functioning with Diminished Capacity at the time . . . ." Therefore, the argument raised by PCR counsel, that trial counsel failed to adequately investigate and assert a diminished capacity defense, is unsupported by the facts. Trial counsel did explore the possibility and secured an expert report that opined the defense was unavailable. We therefore conclude that defendant's argument that PCR counsel was ineffective is entirely without merit.
Lastly, defendant argues Judge Alvarez "erred in denying the petition." We recite verbatim the contents of defendant's brief in this regard.
The defendant equally submits that Judge Alvarez erred in denying the petition on the plurality of other claims for relief raised in the defendant's other moving papers, namely:
* defense counsel being a municipal prosecutor
* points of error set out in the defendant's appendix.
The inadequacy of this purported legal argument is patently obvious. While counsel may have felt compelled to include the argument in his brief, we hasten to point out that while Rule 3:22-6(d) requires PCR counsel to "advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them," State v. Rue, 175 N.J. 1, 19 (2002), "[t]hat mandate does not apply to appellate counsel." State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007).
Nonetheless, the argument is without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). We add only that we fully agree with Judge Alvarez's analysis of the alleged conflict of interest issue. Although the record is less than clear as to trial defense counsel's appointment as a municipal prosecutor, when it occurred and what was its term, this situation was apparently one of the "120 pending cases in which part-time municipal prosecutors ha[d] been assigned to represent defendants on indictable offenses in the Superior Court of the same county," an important factor in leading the Supreme Court to deny any retroactive effect to its holding in Clark. Clark, supra, 162 N.J. at 208. There is nothing in the record to indicate that at the time of defendant's trials, counsel was subject to disqualification and defendant has not alleged how his representation was inadequate because of any alleged conflict. Our review of the contents of defendant's pro se submissions support the conclusion reached by Judge Alvarez. The contentions he has raised were, or should have been, raised on direct appeal, Rule 3:22-4, or else were otherwise without merit.