On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 05-02-0245, 05-04-0851, and 05-06-0359.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2009
Before Judges Axelrad and Parrillo.
Defendant Daniel McFarland appeals from an order denying his post-conviction relief (PCR) petition in which he alleged ineffective assistance of trial counsel in failing to: (1) develop a potentially viable state of mind defense based on defendant's "serious substance abuse problem and other mental health issues"; and (2) challenge an alleged unduly suggestive identification procedure by police. We affirm.
On July 5, 2005, defendant entered a guilty plea to two counts of first-degree robbery, one in Cape May County (I-05-06-0359) and one in Atlantic County (I-05-04-0851), N.J.S.A. 2C:15-1; and fourth-degree making a false report (Atlantic County, I-05-02-0245), N.J.S.A. 2C:28-4a. Pursuant to the negotiated plea agreement, the other charges and indictments were dismissed, and the court imposed a concurrent ten-year custodial sentence with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the armed robbery convictions, and a concurrent 365-day sentence on the false report conviction. Defendant did not file a direct appeal.
Defendant instead filed this PCR petition, asserting ineffective assistance of trial counsel and several arguments now abandoned, and seeking an evidentiary hearing or a setting aside of his plea, reversal of his conviction, and remand for trial. On February 5, 2007, the court denied defendant's petition, following oral argument but without an evidentiary hearing.
Defendant first claimed his counsel was ineffective in failing to develop the issue of his "serious substance abuse problem and other mental health issues" that impacted his decision-making process. The defense argued that defendant told trial counsel about his ADHD and substance abuse problems, and thus his counsel was deficient in failing to secure a professional evaluation as to whether defendant's crimes were motivated by intoxication, psychological dysfunction, substance abuse, or a related condition. The prosecutor responded that defendant failed to present any proof of a diminished mental capacity or similar state of mind defense and, furthermore, the preparation and execution of the Wawa robberies in which defendant disguised himself and presented a threatening note to the clerks, was not the type of conduct that could be categorized as unknowing or lacking in purpose.
Defendant's next claim was that his trial counsel was ineffective in failing to challenge the out-of-court photographic identification utilized by the police in which the police developed defendant as a suspect and showed only his photograph to the Wawa convenience store clerks and other witnesses who did not otherwise know him. According to defendant, because this procedure was impermissibly suggestive, his counsel should have moved to suppress the witnesses' identification of him as the robber. Had the statements been excluded, he argued, his subsequent inculpatory statements would also have been excluded as the fruit of the poisonous tree, and the remaining evidence would have been scant, at best. Accordingly, defendant urged, his plea position would have been much stronger, and the offer, considerably less.
Defendant's claims were addressed and rejected by the trial court. Judge Isman could not perceive how a failure to have defendant psychologically evaluated could have made a significant difference, noting:
Plenty of kids have ADHD who do not go out committing armed robberies. In fact, most don't go out committing armed robberies. AD[H]D is merely an attention deficit disorder. It doesn't mean you got to hit the nearest Wawa, Sunoco station and the following Wawa and hit them up for money, and threaten people with their lives.
In addressing the claim of failure by counsel to challenge the police identification, the court found defendant never offered any proof of circumstances beyond the single photograph to suggest there was a taint with the out-of-court procedure, noting, in fact, that one witness said he was already familiar with defendant. The court also attributed trial counsel's decision not to file a suppression motion in these cases to the trial strategy of an experienced certified criminal trial attorney who determined that if he proceeded and lost such pretrial motions, "that would have been the end of plea negotiating." Accordingly, the court concluded that defendant "clearly" did not demonstrate that counsel's performance was deficient, the first prong of the test for establishing ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) (In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial.); see also United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed. 2d 657, 667-68 (1984); State v. Allah, 170 N.J. 269, 283 (2002).
Nor did defendant provide any evidence of the second prong. To the contrary, Judge Isman found there was "absolutely nothing" to justify a finding that defendant "did not benefit largely from the efforts his counsel made for him." The court summarized the three incidents that gave rise to the convictions, commenting that the "proofs in this matter were overwhelming, both circumstantial and direct evidence, especially of the Atlantic County" armed robbery. The court also commented throughout its decision about the "unbelievably favorable deal" that trial counsel was able to secure by the plea bargain: two armed robberies in two separate counties to run concurrent to one another, as opposed to consecutive, at the lowest end of the range for a first-degree offense.
Defendant renews these arguments on appeal, contending as well that the trial court erred in denying him an evidentiary hearing. We have carefully reviewed defendant's arguments and find no basis to grant relief. We affirm substantially for the reasons expressed by Judge Isman in his comprehensive decision following oral argument on January 26, 2007. Defendant does not support his bare allegation of a diminished mental state with any competent proof, much less expert evidence. Moreover, the showing of a single photograph to a victim is not unduly suggestive per se. See New Jersey Practice, Criminal Practice and Procedure § l7.75, at 378 (Leonard N. Arnold) (2008-2009 ed. 2008). Absent a proffer of evidence about other pertinent factors surrounding defendant's out-of-court identification as the robber, a court is not required to embark on a protracted inquiry into why defense counsel did not seek to have the identification testimony of the clerks' suppressed. Thus, as defendant has failed to make a prima facie showing of ineffectiveness within the Strickland test, an evidential hearing was not warranted. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.) (holding that a defendant cannot secure an evidentiary hearing on an ineffective assistance of counsel claim for PCR ...