On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-09-1792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and LeWinn.
Defendant Sean Garcia appeals from the order of the Criminal Part entered on December 1, 2006, denying his petition for post-conviction relief. He presents the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THAT HIS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE EXTENT OF HIS MENTAL HEALTH ISSUES TO DETERMINE WHETHER THESE ISSUES SUPPORTED A DIMINISHED CAPACITY DEFENSE AND/OR COMPROMISED HIS ABILITY TO ENTER A KNOWING AND VOLUNTARY GUILTY PLEA.
IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
Having reviewed the record in light of these contentions, we affirm.
Defendant was indicted for first-degree robbery, contrary to N.J.S.A. 2C:15-1, and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a). These offenses occurred on July 8, 2003. On December 15, 2003, defendant pled guilty to both counts of the indictment in exchange for the State's recommendation of a ten-year sentence on the armed robbery charge, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On April 2, 2004, defendant was sentenced pursuant to the plea agreement, to a term of ten years with an eighty-five percent period of parole ineligibility on the armed robbery charge and a concurrent sentence of four years on the resisting arrest charge.
On March 8, 2005, defendant appealed his sentence pursuant to our Excessive Sentence calendar. R. 2:9-11. At that argument counsel contended that the sentencing judge erred in failing to find mitigating factor number four, namely that there were "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" pursuant to N.J.S.A. 2C:44-1(b)(4). We affirmed defendant's sentence. State v. Garcia, No. A-5894-03 (App. Div. March 8, 2005).
On October 6, 2006, defendant filed a petition for post-conviction relief, claiming ineffective assistance of trial counsel for failure to "investigate whether [defendant] was competent to plead guilty and/or understand the consequences of his plea since [defendant] had a lengthy psychiatric history prior to committing this offense[.]" In support of this contention defendant submitted a psychiatric assessment dated October 31, 1997, diagnosing him with "AttentionDeficit/Hyperactivity Disorder [ADHD/ADD], Combined Type[.]" The petition ...