On appeal from an order of the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-08-01073.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Graves and Newman.
Defendant Jeffrey Mondell appeals from an order denying his petition for post-conviction relief (PCR). We affirm. Defendant has appealed to this court on two prior occasions. His first appeal involved whether he was entitled to a hearing on the entry of his guilty plea to determine if it was entered knowingly and voluntarily. He asserted that he was on medication when he entered his guilty plea. He also challenged his sentence as being excessive. We affirmed his conviction and found his sentence of 38 years imprisonment with 33 of those years being subject to the 85% parole ineligibility provisions of NERA not to be manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. Mondell, Docket No. A-4587-02 (App. Div. Jan. 14, 2005) (slip op. at 11). However, we affirmed without prejudice for his opportunity to file a motion seeking to withdraw his guilty plea.
Defendant moved to withdraw his guilty plea. That matter was heard and denied by the trial court and affirmed by us. State v. Mondell, No. A-3281-06 (App. Div. Oct. 18, 2007). There, we agreed that the guilty plea was entered voluntarily and knowingly substantially for the reasons stated by the trial court in its comprehensive oral decision. Id. at 6-7. In denying the motion to withdraw, the trial court noted that defendant was taking the medication known as Trazodone, an antidepressant with side effects of a sedating nature in some patients. The trial judge was satisfied that those drugs did not rise to the level of impairing Mr. Mondell's ability to knowingly and voluntarily waive his right to trial and enter a plea agreement; that he fully understood the consequence of the plea [and] the parameters of the sentence.
In our first decision, we traced the various criminal events that defendant and his wife engaged in and described them as follows:
Defendant's guilty plea arises from a series of robberies that took place on March 13, May 8, June 3, and June 11, 2002, in Ocean County. On June 11, 2002, Little Egg Harbor police officers were dispatched to Mystic Pharmacy on Radio Road in Mystic Island in response to a report of an armed robbery. By the time the officers arrived at the scene, the suspects had already fled. Various witnesses at the scene described the suspects as a white female and male, in a black Ford Taurus. Shortly thereafter, Officers Steve Bogart and Michael Pritch observed a vehicle that matched the description of the suspects' vehicle. The vehicle was being driven by co-defendant and defendant was lying in the back seat. After pulling the vehicle over, the officers exited the patrol car, drew their weapons, positioned themselves behind the car doors, and ordered the occupants to turn off the ignition and throw the keys out the window. Meanwhile, backup units arrived.
As co-defendant exited the vehicle, she was ordered to get down on the ground. Instead of exiting the vehicle, defendant started firing gunshots at the officers from the driver's side rear window. The officers returned fire. After several rounds were fired, defendant stopped shooting. Co-defendant then ran to the vehicle and shouted, "I think he's hurt." The officers approached the vehicle, and saw defendant lying on the seat bleeding from his shoulder. Defendant and co-defendant were taken into custody and the officers searched the vehicle and found a fully loaded Colt AR-15 assault rifle, along with a.45 caliber semiautomatic handgun.
At his plea hearing, defendant admitted to committing the robberies on March 13, May 8, June 3, and June 11, 2002. He also admitted that on all four occasions he was masked, armed with a handgun, and, at gunpoint, demanded prescription drugs from the employees. He agreed that after the employees filled a bag with pills he fled the scene in a car driven by his wife. Defendant also agreed that when stopped by the police on June 11, 2002, he was armed with a handgun and fired three shots at the police officers. Defendant conceded that it was his intention to fire at the police officers and he was aware at the time that his action constituted a substantial step towards killing the police officers. Finally, defendant admitted that the assault rifle found in the car was acquired by him in Ohio, and that he brought it with the intention of possibly using it during the robbery on June 11, 2002. [Mondell, supra, No. A-4587-02, at 1-5.]
In defendant's latest challenge through post-conviction relief, he contends that he was not informed of the results of Dr. Verdon's evaluation and potential defenses of diminished capacity and intoxication until the day of the plea hearing when he was under the influence of Trazodone as prescribed by the jail psychiatrist. He claims that his attorney was derelict in not recognizing that he was under the influence of Trazodone which constituted ineffective assistance of counsel. He also maintains that once his trial attorney obtained the report mentioning the potential defenses of diminished capacity and intoxications, his attorney did not properly research and investigate these defenses. Again, he asserts that there was a denial of effective representation at the plea hearing.
In rejecting these contentions, the PCR judge concluded that counsel was not deficient by rejecting the contention that defendant's attorney did not fully investigate the possible defenses of diminished capacity and intoxication. The PCR judge pointed out that it was defense counsel who arranged for defendant to be examined by the psychiatrist in the first place to explore any possible defenses. Dr. Verdon indicated that defendant was not able to form a requisite intent to commit robbery and attempted murder. Defendant did not indicate "what any further investigation would reveal or why a further investigation would be necessary." Thus, counsel's actions were not deficient under the first prong of the test elaborated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 52 (1987).
The PCR judge went a step further and indicated that the evidence of record did not support a conclusion that defendant was unable to form the necessary intent which was an element of the robberies and attempted murder charges. The judge then recited what ...