On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-01-0093-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Axelrad and Lihotz.
Defendant Harold Mungro appeals from an order of April 13, 2006, denying his application for post-conviction relief (PCR), arguing he established a prima facie case for ineffective assistance of trial counsel warranting a remand for an evidentiary hearing. According to defendant, trial counsel failed to adequately communicate with him, as he insufficiently explained the nature and consequences of the charges and defendant's options, and never reviewed discovery with him. Defendant further argues his counsel was ineffective in failing to retain a mental health professional to investigate a psychiatric or diminished capacity defense after having filed a Notice of Insanity Defense and a Notice of Defense of Evidence of Mental Disease or Defect, and in failing to obtain a psychological evaluation of defendant. Defendant posits that the lack of adequate consultation and investigation of the mental illness defense constitutes a prima facie case of ineffectiveness of counsel, rendering irrelevant his guilty plea. We are not persuaded by defendant's arguments and affirm substantially for the reasons articulated by Judge Thomas C. Smith following oral argument on March 30, 2006.
Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree carjacking, first-degree robbery, and third-degree aggravated assault. He testified that on August 21, 2000, he and a co-defendant stopped Justin Lee, who was operating a l998 Nissan Sentra, and asked him for a ride. After entering the car, defendant, at knife-point, took the car and Lee's wallet. In doing so, defendant cut Lee with the knife. Defense counsel argued that defendant had a long and documented history of mental issues that, although not rising to the level of a defense, should warrant treatment as a mitigating factor, and moved to sentence defendant in accordance with the plea agreement. Judge Smith found four aggravating factors and no mitigating factors. Regardless, he sentenced defendant pursuant to the negotiated agreement to concurrent eighteen-year terms for robbery and carjacking, subject to the No Early Release Act, and a concurrent five-year term for assault, all concurrent to a sentence imposed in Missouri. He dismissed the remaining six counts of the indictment and an unrelated shoplifting charge.
Defendant did not file a direct appeal. Rather, he filed a pro se PCR petition, which was supplemented by a petition filed on his behalf by counsel, asserting the ineffective assistance of counsel arguments renewed on appeal. Judge Smith addressed each argument, finding defendant failed to meet the first prong of the Strickland test to establish a claim for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-69, 80 L.Ed. 2d 674, 693-98 (1984)(In order to establish a claim for ineffective assistance of counsel, a defendant must meet the two-prong test of showing that his counsel's performance was seriously deficient in that it fell below an objective standard of reasonableness measured by prevailing professional norms, and that the defect in performance prejudiced his right to a fair trial and affected the outcome of the case.).
The court found defendant's failure-to-communicate claim was not supported by the record of the plea hearing. The court referenced in detail its lengthy colloquy with defendant regarding his review with counsel of the discovery, case, and plea agreement; understanding of the terms of the plea agreement and waiver of his right to a trial; voluntary acceptance of the plea agreement; and acknowledgement of counsel's assistance and satisfaction with counsel's representation. In rejecting defendant's claim asserting counsel's deficiencies regarding psychiatric and psychological evaluations and experts, the court referenced defense counsel's arguments at sentencing, which indicated counsel's awareness of mental health issues in the case based on previous medical reports and his determination such issues were insufficient to constitute a defense. Citing Strickland's high standard for the first prong, Judge Smith determined that defense counsel made a strategic decision to forego forensic experts and proceed as he did with the favorable plea, advancing defendant's documented history of mental issues as a mitigating factor. In analyzing whether counsel acted outside the wide range of professionally competent assistance, there is a strong presumption that counsel made significant decisions in the exercise of his or her reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). However, to establish a prima facie claim, a defendant must demonstrate the reasonable likelihood of succeeding under the two-prong Strickland test. Id. at 463. We are satisfied this record, viewed in the light most favorable to defendant, see ibid., does not support a scintilla of evidence of deficient performance by trial counsel under the Strickland standard. Accordingly, an evidentiary hearing was not warranted.
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