On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-13-0513 and 03-12-0514.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Winkelstein and Gilroy.
Defendant Willie Davis, following an argument with his girlfriend M.M., brutally murdered their two children, a twenty-three-month-old daughter and a five-month-old son. Following defendant's guilty plea on two counts of first-degree murder, N.J.S.A. 2C:11-3a(1), defendant was sentenced to two consecutive thirty-year terms of imprisonment, without parole. Defendant appeals from the judgments of conviction and the sentences imposed. For reasons that follow, we affirm the convictions and sentences without prejudice to defendant filing a petition for post-conviction relief (PCR).
The following description of the murders is derived from the transcript of the plea hearing and the pre-sentence report. On the evening of December 8, 2002, defendant picked up his children from their maternal grandmother's home in Jersey City Heights and took them to his apartment in Bayonne, where he resided with M.M. Following a telephone conversation with M.M., defendant became upset, contemplated death, and attempted to slit his throat with a box cutter. After failing to commit suicide, defendant received a second telephone call from M.M., during which they argued about his belief that she was not helping to support their household and of his suspicion that she was cheating. Immediately after this argument, defendant slit his children's throats with the box cutter. He then cut each child several more times and laid their bodies on his bed.
M.M. later called defendant to tell him she was coming home and asked that he pay her taxi fare when she arrived. After paying the fare, defendant and M.M. went upstairs, where defendant showed her the children's bodies, saying "[l]ook what you made me do." M.M. claimed that defendant then threatened her with a bat and forced her to cut herself. When defendant eventually fell asleep, she fled the apartment, found a police patrol car and told the officer what had happened. Defendant was taken to Jersey City Medical Center where on December 9, 2002, he admitted to the police that he killed his children.
On April 15, 2003, defendant was charged under Accusation Nos. 513-03 and 514-03 with two counts of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1). On the same day, defendant pled guilty to both counts. In exchange for his plea, the State agreed not to seek the death penalty, but would instead recommend a sentence of thirty years of imprisonment, without parole on each count, to be served consecutively. Pursuant to Rule 3:9-2, the court established the factual basis for the plea, confirmed that defendant understood his decision, and ensured that defendant had been neither threatened nor coerced into entering his plea. Once satisfied that defendant's plea was both knowing and voluntary, the court accepted the plea and set a sentencing date of August 14, 2003.
In the interim, on February 3, 2003, two months before the plea, social worker Jorge L. Abreu submitted a preliminary case review indicating that defendant committed the murders during "a sudden disorganized homicidal rage" brought about by a combination of humiliation, substance abuse, early childhood trauma, and a neuro-cognitive deficiency. On April 13, 2003, two days before the plea hearing, defendant was interviewed by defense psychologist, Guillermo Parra, Ph.D. Parra interviewed defendant again on May 13, 2003, and May 17, 2003. On June 5, 2003, Parra submitted a report in which he opined that, while defendant was competent to stand trial, he suffered from a mental defect during the murders rendering him unaware that his actions were wrong. Parra agreed with Abreu that defendant suffered a "[c]atathymic crisis,"*fn1 causing defendant to believe that the only logical way to save his family was by destroying it. He further opined that defendant has an "incipient schizophrenic disorder" which may have facilitated the crisis.
The sentencing date was adjourned for over one year due to questions about defendant's mental state. The State was concerned that there existed a reasonable potential for a PCR motion without some "articulation on the record that . . . he was competent . . . to waive any affirmative defenses he may have . . . and he could accept the plea." Nevertheless, on November 18, 2003, while represented by his plea counsel, defendant signed an addendum to the April 15, 2003 plea form, acknowledging his understanding of the defense of insanity; acknowledging that "based on evidence provided to [him] since the entry of [his] plea," he "could attempt to assert the defense"; giving up his right "to assert the defense of insanity or any other defense allowed to [him] by law"; and requesting the trial court "to sentence [him] for the crimes [he] pled guilty on April 15, 2003."
On May 5, 2004, the court ordered an independent competency evaluation to be prepared by Peter D. Paul, Ph.D. On July 28, 2004, Paul submitted his evaluation report opining that defendant was malingering and feigning mental impairments in an effort to "lessen his degree of criminal responsibility." Paul concurred with Parra that defendant was fully competent to either stand trial or to waive his rights.
On October 15, 2004, defense counsel notified the court that defendant required new counsel because of issues pertaining to defendant's desire to withdraw his guilty plea. On December 7, 2004, represented by new counsel, defendant filed a motion seeking to withdraw his guilty plea, claiming innocence and arguing that he was unaware of his possible affirmative defenses at the time of the plea and may have lacked the mental capacity required to waive his rights. Because the trial judge who accepted defendant's guilty plea had retired from the bench, the motion was argued before another judge on January 25, 2005.
On February 9, 2005, the trial court entered an order supported by a written opinion denying defendant's motion to vacate his guilty plea. As to the question of defendant's innocence, the court found that defendant's assertion was nothing more than a change of mind "clearly right on point with Paul's independent finding that he is feigning mental illness to avoid his plea." Concerning defendant's competency, the court noted that defendant's own expert found him competent, only raising mental illness as it pertained to a possible insanity defense, which the court found defendant had waived when he signed the addendum and requested sentencing pursuant to his plea. The court concluded that defendant did not present sufficient evidence required to justify withdrawal of his plea because "[n]othing has objectively changed other than defendant changing his mind." On March 3, 2005, defendant was sentenced pursuant to his plea agreement to two consecutive thirty-year terms of imprisonment without parole.
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO VACATE THE PLEA BECAUSE DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY AND ...