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State v. Pinckney


February 25, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 02-08-2990 and 02-12-3975.

Per curiam.


Submitted February 2, 2009

Before Judges Lisa and Alvarez.

Defendant appeals from an order denying his post-conviction relief (PCR) petition. On March 10, 2003, pursuant to a plea agreement, defendant pled guilty under two separate indictments to first-degree armed robbery, N.J.S.A. 2C:15-1, and third- degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). As recommended in the plea agreement, he was sentenced to twelve years imprisonment with an 85% parole disqualifier pursuant to the No Early release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery conviction and a concurrent three-year term on the CDS conviction. Because his appeal pertained only to sentencing issues the matter was placed on our excessive sentence oral argument calendar. See R. 2:9-11. By order of February 9, 2005, we affirmed defendant's sentence. State v. Pinckney, No. A-6088-03T4 (App. Div. February 10, 2005). Defendant did not file a petition for certification with the Supreme Court.

On December 28, 2005, defendant filed his PCR petition. On November 2, 2006, designated counsel filed a supplemental brief on defendant's behalf. PCR counsel argued that defendant's trial counsel was ineffective in several respects, that the trial court erred in accepting defendant's guilty plea without further exploration of defendant's mental state and because defendant's plea was not knowing, intelligent and voluntary, and that the court erred in imposing a twelve-year sentence because it failed to consider an applicable mitigating factor. The matter came before Judge Holden on May 7, 2007. Defendant did not request an evidentiary hearing. After hearing oral argument, the judge denied the PCR petition and entered an order accordingly.

On appeal, defendant argues:













We reject these arguments and affirm.

The robbery occurred on April 19, 2002 in Camden. Defendant approached Victor Miles and asked him for money. Miles gave defendant a "dollar and some change," but defendant demanded more. When Miles refused, defendant produced a knife and brandished it while standing about one foot from Miles. In the ensuing struggle, Miles received three knife wounds to his hand, which required suturing. Defendant was not arrested on this charge until October 15, 2002.

On May 28, 2002, defendant was arrested in Collingswood for driving with a suspended license and for an outstanding municipal court warrant. He was found to be in possession of a bag of cocaine which he had purchased in Camden for $5.

On September 23, 2002, defendant was involuntarily committed to the Camden County Health Services Center (CCHSC). According to the discharge summary of October 18, 2002, the commitment arose out of a report by a woman who stopped defendant from jumping off a bridge near Camden High School. Defendant indicated that he heard voices in his head directing him to kill himself and that he also had homicidal ideations toward his sister with whom he lived. The discharge summary reflected that defendant had at least seven prior psychiatric hospitalizations over the years, including one at CCHSC from June to August 2002.

On his admission on September 23, 2002, defendant was described by the evaluating psychiatrist as "oriented to self but not [to a] specific place." Defendant claimed not to have taken his prescribed psychiatric medication in more than a month. The admitting diagnosis was schizo-affective disorder and polysubstance abuse. Defendant received various medications during his hospital stay and "quickly responded to the medications," which significantly improved his psychiatric condition. On October 11, 2002 defendant left the hospital on a pass to visit his family, but he eloped, and did not return to CCHSC. Prior to leaving, defendant appeared well-dressed, well-groomed and behaved appropriately. He was pleasant, lucid, and coherent, with no visual or auditory hallucinations. His final discharge diagnosis was schizo-affective disorder, bipolar type, and polysubstance dependence.

On October 15, 2002, four days after leaving CCHSC, defendant was arrested on an outstanding warrant for the robbery and lodged in the Camden County jail. According to defendant, he did not receive any medication to maintain his stability while in custody. He came before Judge Baxter on January 23, 2003 for status conferences on the robbery and CDS charges. Defendant's counsel advised Judge Baxter that he was unable to fill out a proposed scheduling order because defendant contended he did not understand what was going on and could not provide basic information needed to be placed in the order. The judge addressed defendant directly. She expressed some skepticism about defendant's lack of understanding because she had observed him in prior court proceedings on the drug charge and he demonstrated an understanding of the events. Further, the judge noted that defendant had previously provided police with a detailed statement regarding the drug charge, which was contrary to an asserted of lack of understanding.

Nevertheless, Judge Baxter ordered a competency evaluation and entered an order to that effect. Pursuant to the order, Dr. Peter D. Paul, a licensed psychologist employed by the New Jersey Department of Human Services, performed the evaluation on February 21, 2003. Dr. Paul considered the discovery materials and defendant's prior medical records, in addition to his one-hour interview of defendant. He concluded that defendant was competent to stand trial and had the ability to assist in his own defense. He noted that defendant's records reflected a long history of manipulative behavior. In his report of February 25, 2003, Dr. Paul wrote that "defendant's inability to answer some of the questions above appears to be a deliberate attempt on his part to feign mental illness and intellectual limitations to lessen his degree of criminal responsibility."

The matter again came before Judge Baxter on March 10, 2003. Defendant and the prosecutor entered into a plea agreement, by which defendant pled to the charges we previously mentioned in exchange for a recommendation of concurrent sentences, with the lead sentence being twelve years with an 85% NERA parole disqualifier for the robbery. During the plea colloquy, Judge Baxter directly addressed defendant and questioned him extensively regarding his understanding of the proceedings, of the charges against him, of the terms of the plea agreement, and of the rights he was giving up by pleading guilty. Defendant, under oath, repeatedly acknowledged his understanding of these matters, that he was "fully satisfied" with his attorney's legal advice and services, and that he understood his sentence and was "pleading guilty voluntarily and of [his] own free will." Defendant provided a factual basis for both crimes, describing the events with specificity and in a manner consistent with the discovery materials.

Judge Baxter sentenced defendant on April 24, 2003 in accordance with the recommendation in the plea agreement. Although the judge found the presence of four aggravating factors and no mitigating factors, she nevertheless accepted the recommendation in the plea agreement and imposed on the robbery charge the below-presumptive recommended sentence of twelve years imprisonment. And, although the drug offense was completely unrelated to the robbery, she accepted the plea agreement recommendation and imposed a concurrent three-year term.

On direct appeal, defendant's appellate counsel challenged defendant's sentence as excessive on the basis that the trial court failed to consider defendant's history of mental illness as a mitigating factor. In doing so, counsel brought to our attention the fact that defendant had a history of psychiatric treatment and involuntary commitments. We rejected those arguments and affirmed the sentence imposed.

In his PCR proceeding, defendant did not question the effectiveness of appellate counsel, but alleged that his trial counsel had been ineffective in failing to seek an independent psychological evaluation regarding his competency to stand trial (or enter a plea), failing to pursue an insanity or diminished capacity defense, failing to request a competency hearing, and failing to ensure that defendant understood the consequences of his guilty pleas. In support of his argument, defendant presented only two items. The first was the October 18, 2002 CCHSC discharge summary to which we have previously adverted. The second was defendant's certification, which had previously been submitted in support of his motion to allow his direct appeal to be filed out of time, in which he stated he had "been under psychological care and taking medication for mental problems for over the past ten years . . . . and [his] medication had been so strong that [it] has left [him] at times very confused and disoriented." He further certified that he had only a sixth grade I.Q., could not read or write, and had "serious troubles understanding things." The certification also stated that "at the time of my sentencing I was under mental duress and debilitation and I do not recall what the judge or my attorney informed me, if they ever did."

Notably, defendant produced no report and certification of a psychiatrist or licensed psychologist opining that he was not competent to enter a plea on March 10, 2003. See N.J.S.A. 2C:4-5. Nor did he present a psychiatric opinion and certification opining that he lacked the mental capacity to act purposely or knowingly (diminished capacity, see N.J.S.A. 2C:4-2), or that he did not understand the nature and quality of his acts or that they were wrong (legal insanity, see N.J.S.A. 2C:4-1), at the time he committed the robbery on April 19, 2002 or the drug offense on May 28, 2002. Also glaringly missing from defendant's submission were the records of his apparent hospitalization from June to August 2002.

In denying defendant's PCR petition, Judge Holden noted the absence of any materials to contradict Dr. Paul's competency evaluation, which was adverse to defendant. He also noted that Judge Baxter carefully questioned defendant at the time of his plea, assessed his understanding of the relevant issues, and was satisfied that defendant demonstrated sufficient competency and understanding. Judge Holden found that defendant's PCR arguments were, for the most part, procedurally barred because they had already been addressed on direct appeal. Alternatively, he found the arguments lacking in substantive merit.

To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 690-94, 104 S.Ct. 2052, 2066-68, 80 L.Ed. 2d 674, 695-98 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), which New Jersey adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, a defendant must first establish that counsel's performance was deficient in that counsel committed errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Fritz, supra, 105 N.J. at 52. Courts grant a high degree of deference in evaluating the performance of counsel, and employ a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Defendant must overcome the presumption that counsel engaged in "the exercise of reasonable professional judgment." State v. Oglesby, 122 N.J. 522, 538 (1991).

The second prong of the Strickland/Fritz test requires the defendant to show that the deficient performance prejudiced his or her defense. Fritz, supra, 105 N.J. at 52. The defendant must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. Courts will only presume prejudice in cases of the most egregious shortcomings in counsel's performance. Id. at 53.

A judge considering an ineffective assistance claim should view the facts in the light most favorable to defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Nevertheless, in order to establish a prima facie case, a petitioner must do more than make mere bald assertions that he was denied the effective assistance of counsel. Ibid. He must allege facts sufficient to prove the allegations of his attorney's substandard performance, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. Ibid.

Defendant's criticism of his trial counsel regarding defendant's mental health status is relevant in two respects. First, defendant argues that his trial counsel should have brought defendant's mental health status to Judge Baxter's attention at sentencing, because it would have supported the finding of a mitigating factor, namely "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1b(4). This argument is to no avail. First, it is procedurally barred because the substantially equivalent argument has already been presented to this court on direct appeal and rejected. See R. 3:22-5. Further, defendant has presented no competent evidence, in the PCR proceeding in the trial court or before us, to establish that any deficiencies in his mental health affected his criminal conduct at the time of the robbery and drug offense. Indeed, considering the nature and circumstances of those offenses and defendant's admitted course of conduct in committing them, it appears he was fully lucid in his behavior. Further, even if this factor were entered into the sentencing calculus and given significant weight, when qualitatively balanced against the aggravating factors, it would not have produced a sentence lower than twelve years for the robbery, not to mention the concurrency of the three-year sentence for the unrelated drug offense, all as provided for in the plea agreement and accepted by the judge.

The second aspect of defendant's mental health status pertains to whether trial counsel was deficient for not raising a defense of diminished capacity or insanity or taking steps to avoid trial or the entry of a plea by attempting to establish defendant's lack of competency at the time of the plea. This argument is unavailing because it relies on nothing more than speculation and a bald assertion. Inexplicably, defendant has failed to produce the psychiatric records of his hospital admission from June to August 2002. Nor has he produced any expert's report opining that defendant had a diminished capacity or was legally insane at the time of the crimes, nor a psychiatric or psychological report opining that he was not competent to stand trial or enter a plea as of March 10, 2003. The absence of such materials precluded the establishment of a prima facie case of ineffective assistance of trial counsel in that regard. Cummings, supra, 321 N.J. Super. at 170.

We also find unpersuasive defendant's argument that trial counsel should have requested a competency hearing in order to submit Dr. Paul to cross-examination. In essence, defendant now argues that his trial counsel should have held the State to its proofs regarding his competency. Again, defendant offers nothing but speculation. He does not explain how his counsel would have been able to undermine, through effective cross-examination, Dr. Paul's assessment and opinion.

For the same reason, we reject defendant's argument that Judge Baxter erred in failing to conduct a competency hearing. Dr. Paul's report was unrefuted. He was appointed by the court, not retained by the prosecution, and, as such, he was neutral and impartial. In addition to the report, the judge also relied on her own observations and assessment of defendant's demeanor in his sworn testimony at the plea hearing. Judge Baxter found no basis and had no obligation to require a competency hearing. We defer to Judge Baxter's assessment of defendant's mental state and understanding of the proceedings. She was in the best position to observe defendant's demeanor, and she engaged in a thorough colloquy with defendant in reaching her conclusion that he understood all relevant issues and entered his plea knowingly and voluntarily.

Defendant raises for the first time on appeal an allegation that his appellate counsel was ineffective because she challenged only the excessiveness of defendant's sentence and did not argue that trial counsel provided ineffective assistance or that the trial judge erred because the guilty plea was entered without defendant's knowing, voluntary, and intelligent consent. First, because this argument was not raised in the PCR proceeding in the trial court, it is not properly before us. Nevertheless, we address it on the merits and reject it out of hand. Had appellate counsel raised the ineffective assistance of trial counsel issue, it undoubtedly would have been rejected without prejudice to raising it in a PCR proceeding because it would require development of issues outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). Likewise, based upon the trial record, any argument that the plea was not knowingly, intelligently, and voluntarily entered would have been rejected.

Finally, we address defendant's last two points. He argues that the procedural bars against post-conviction relief should not have applied. As we have stated, Judge Holden alternatively denied defendant's petition on the merits. We have done the same. All of defendant's arguments are lacking in substantive merit. In his final point, defendant argues on appeal that he should have received an evidentiary hearing in his PCR proceeding. As we stated, he did not ask for one in the trial court. Further, because he failed to establish a prima facie case of ineffective assistance, he was not entitled to one. Id. at 462.



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