July 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIOVANNY GARCIA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-0392-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2009
Before Judges Fuentes and Gilroy.
Defendant Giovanny Garcia appeals from the order of the Law Division, Criminal Part, denying his post-conviction relief (PCR) petition. We affirm.
On November 22, 2002, the day scheduled for trial, defendant entered an open guilty plea*fn1 to second-degree robbery, N.J.S.A. 2C:15-1a(2), third-degree burglary, N.J.S.A. 2C:18-2a, third-degree criminal restraint, N.J.S.A. 2C:13-2a, and third- degree terroristic threats, N.J.S.A. 2C:12-3b. The court sentenced defendant to an aggregate term of seven years, with an eighty-five percent period of parole ineligibility, and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On defendant's direct appeal, we affirmed the conviction and sentence. State v. Giovanny Garcia, No. A-1537-05, (App Div. August 22, 2006). On October 13, 2006, defendant filed a pro se PCR petition alleging that his trial counsel was ineffective in failing to pursue a voluntary intoxication defense. Specifically, defendant argued that the evidence supported a voluntary intoxication defense because on the day he allegedly committed the crimes listed in the indictment, he was "drinking beer all day and popping Xanax like it was candy."
According to defendant, his inability to recall any of the details of his crimes at the plea hearing should have alerted his trial counsel to pursue this affirmative defense.
The matter came before Judge Conforti on July 17, 2007. After considering the arguments of counsel, Judge Conforti denied defendant's PCR petition. In his oral opinion, Judge Conforti found that, other than defendant's self-serving statements about his alleged consumption of alcohol and ingestion of psychotropic medication, the record was otherwise devoid of evidence to support an intoxication defense.
Defendant now appeals raising the following arguments:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF. (Not Raised Below)
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN PROCEEDINGS BEFORE THE TRIAL COURT LEADING TO THE ENTRY OF HIS GUILTY PLEA. (U.S. CONST., Amend. VI, XIV; N.J. Const. (1947), Art. I, par. 10).
(a) Defendant's Trial Counsel Failed to Conduct an Adequate Investigation of the Facts and Law Applicable to Defendant's Case.
(b) Defendant Was Prejudiced by Ineffective Assistance During the Plea Negotiation Process.
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS THAT DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT DEFENDANT'S SENTENCING. (U.S. CONST., Amend. VI, XIV; N.J. CONST. (1947), Art. I, par. 10).
THE PCR COURT ERRED BY RESOLVING DISPUTED ISSUES OF FACT AGAINST DEFENDANT AND DENYING DEFENDANT'S REQUEST FOR A HEARING ON HIS PCR PETITION.
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF THE CUMULATIVE ERRORS AND OMISSIONS OF HIS TRIAL COUNSEL IN FAILING TO PREPARE DEFENDANT'S CASE FOR TRIAL.
DEFENDANT'S PETITION FOR POST-CONVCITION RELIEF SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE MEMORANDUM IN SUPPORT OF HIS PETITION.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We will nevertheless briefly comment on defendant's argument concerning the voluntary intoxication defense.
Other than defendant's statements at the plea hearing, the only evidence concerning defendant's state of mind at the time he committed these offenses is found in the pre-sentence investigation report. The section containing the victim's account of events reads as follows:
The victim reported that she was in her room when the male subject entered her room and assaulted her. The defendant ordered her from her bed, grabbed her and threw her against the wall where he implied he had a gun. He then threatened to kill her and struck her across the face with an open hand (right hand of actor to left cheek of victim). The defendant also placed his hand over her mouth at one point.
The actor proceeded to remove a sum of cash (believed to be approximately $80.00) from the victim's purse (wallet). He also was observed opening the victim's jewelry box but no items were removed. The only item the suspect handled was a light switch. The actor is believed to have taken the victim's cigarettes. He spoke with a Spanish or middle eastern accent, and at times, 'spoke as if he was speaking to someone else (incoherent rambling).' The two [defendant and victim] left the apartment and walked toward the ATM machine downtown where the victim ran from the defendant as she flagged down a passing motorist who transported her to Police Headquarters.
The defense of intoxication is codified in N.J.S.A. 2C:2-8, which defines "intoxication" as "a disturbance of mental or physical capacities resulting from the introduction of substances into the body." N.J.S.A. 2C:2-8e(1). This statutory definition has been supplemented by the Supreme Court as follows:
It is not the case that every defendant who has had a few drinks may successfully urge the defense. The mere intake of even large quantities of alcohol will not suffice. Moreover, the defense cannot be established solely by showing that the defendant might not have committed the offense had he been sober. See Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, Commentary (1971) at 68. What is required is a showing of such a great prostration of the faculties that the requisite mental state was totally lacking. That is, to successfully invoke the defense, an accused must show that he was so intoxicated that he did not have the intent to commit an offense. Such a state of affairs will likely exist in very few cases.
[State v. Cameron, 104 N.J. 42, 54 (1986) (quoting State v. Stasio, 78 N.J. 467, 495 (1979)).]
Against these principles, the evidence available to defense counsel at the time defendant pled guilty did not support the defense of voluntary intoxication. According to the victim, defendant was able to enter the victim's room, assault and threaten her, and ransack her residence to steal her property.
Accepting as true that defendant, at times, appeared to the victim to be speaking to himself, and crediting defendant's statement that he "drank beer all day long" and ingested Xanax "like it was candy," this evidence is insufficient to establish a prima facie case of "intoxication," as defined by the Supreme Court in Cameron. Ibid. Stated differently, there is no evidence that defendant suffered from "such a great prostration of the faculties that the requisite mental state [to commit the offenses listed in the indictment] was totally lacking."
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984). Our Supreme Court has adopted the Strickland standards. State v. Fritz, 105 N.J. 42, 63 (1987).
Here, defendant has failed to show that his counsel's decision not to pursue an intoxication defense fell below the standard of a reasonably competent criminal defense attorney in this State. Defendant was questioned thoroughly by the judge who accepted his guilty plea to insure that he was aware of his right to proceed to trial. Indeed, defendant pled guilty on the day the case was scheduled for trial. On direct appeal, we affirmed the conviction and sentence, rejecting defendant's argument attacking the voluntariness of his plea. Although it is unusual for a defendant to plea guilty without the benefit of a negotiated plea agreement, the record shows that defendant received competent legal representation when he decided to plead guilty to the indictment, and forgo his right to trial.