August 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-03-0569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 3, 2010
Before Judges Axelrad and Espinosa.
Defendant P.T. appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing in which he asserted ineffective assistance of trial counsel. We affirm.
Defendant was charged in Ocean County Indictment No. 04-03-0569 with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:l4-2a(2)(a) (counts one, four and nine); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two, five and ten); three counts of third-degree aggravated sexual contact, N.J.S.A. 2C:l4-3a (counts three, six and eleven); two counts of second-degree sexual assault, N.J.S.A. 2C:l4-2c(3)(a) (counts seven and twelve); and two counts of fourth-degree sexual contact, N.J.S.A. 2C:l4-3b (counts eight and thirteen).
On June 21, 2004, defendant pled guilty to two counts of first-degree aggravated sexual assault (counts one and nine) and two counts of second-degree endangering the welfare of a child (counts two and ten), in connection with sexual assaults upon his teenage daughters at various times while they were between the ages of thirteen and sixteen years old. During the plea colloquy, defendant provided an extensive and detailed factual basis, including adopting the twenty-page statement he gave to the police in October 2003. He testified that on various occasions between l997 and l999 he exposed his genitals to his older daughter, made her touch his penis and masturbated and ejaculated in her presence, and on various occasions between l999 and 200l he engaged in similar sexual activities with his younger daughter, digitally penetrating her vagina, engaging in oral sex and masturbating in her presence.
Prior to sentencing, defendant, through counsel, filed a motion to withdraw the plea, which was denied by Judge Citta following oral argument by order of October l8, 2004. The court found there was "no justification whatsoever for the application to retract the guilty plea," noting that "[n]owhere in [defendant's] certification does it indicate anything other than he wishes to retract his plea because he's decided that the sentence is too long and nowhere does he set forth that there is any type of viable or plausible defense." The judge then sentenced defendant in accordance with the plea agreement to fifteen years in custody subject to an eighty-five percent period of parole ineligibility on count one (first-degree aggravated sexual assault), a consecutive term of fifteen years flat on count nine (first-degree aggravated sexual assault), and seven years flat each on counts two and ten (second-degree endangering) concurrent to one another and to count one.
Defendant appealed his sentence, which was heard on an Excessive Sentence Oral Argument calendar. We affirmed the judgment of the trial court in February 2006. In June 2006, the Supreme Court, on petition for certification, summarily remanded the matter to the Appellate Division to supplement our order and address defendant's argument that the trial court should have granted his motion to withdraw the plea. By supplementary order of August 10, 2006, we affirmed the denial of the motion to withdraw the plea "for the reasons set forth in [Judge Citta's] extensive oral opinion." We expressly noted this was a "negotiated plea to a specific term of years substantially less than defendant was exposed to under the statute," the plea was entered into "knowingly and voluntarily" and "defendant presented 'no plausible defense' and 'no justification whatsoever for the application to retract the guilty plea.'" By an order in November 2006, the Supreme Court addressed our supplemental order and denied defendant's petition for certification.
In April 2008, defendant filed a pro se PCR petition in which he maintained he had been denied adequate legal representation by trial counsel who did not return phone calls from his family, did not honor his request to make a motion for the judge to recuse himself, and coerced him into accepting the plea agreement; his medication was not stable enough when he accepted the plea agreement; his constitutional rights were violated when his motion to retract the plea was denied; he had a potential defense of diminished capacity, which was never explored by trial counsel; and he questioned the applicability of the No Early Release Act to his crimes. PCR defense counsel supplemented these contentions and emphasized that defendant had not been mentally competent at the time of the plea hearing. He relied, in part, on the discharge summaries from Kimball Medical Center (October 2, 2003) and from Ancora Psychiatric Hospital (October 9, 2003), and urged that defendant was entitled to an evidentiary hearing.
At oral argument on February 4, 2009, PCR counsel referenced defendant's history of mental illness, the various medications defendant had been taking at the time of the plea, the failure of trial counsel to conduct any pretrial investigation, and trial counsel's failure to explore a potential diminished capacity defense or to request a competency hearing. Judge Den Uyl addressed and rejected each of these contentions in an oral ruling, finding defendant failed to make a prima facie showing of ineffectiveness of counsel warranting an evidentiary hearing, and denied defendant's PCR application, memorialized in an order of the same date. In particular, the judge noted defendant's assertion that he did not understand the nature of the plea because he was suffering from Bipolar Disorder and depression and was taking ten prescription medications. The judge found, however, that the plea hearing demonstrated otherwise. Referencing the record, the judge noted that defendant stated he fully understood all aspects of the plea agreement, acknowledged his knowing and voluntary acceptance of the plea agreement and answered specific questions about his waiver of rights, his possible exposure, and all aspects of the negotiated plea. As further evidence that defendant was aware of his actions during the plea, the judge noted that defendant "relayed a detailed factual basis and showed no signs of memory loss." The PCR judge also emphasized that Judge Citta was fully aware of and discussed with defendant the specific medications he was taking at the time, expressly asking whether any of them affected his ability to understand the proceedings. Judge Den Uyl quoted the following colloquy from the record of the plea proceedings:
[Judge Citta] then stated that, "All I want to do is make sure that any medicines that you're taking have not impaired your ability to listen to your lawyer's advice, review your discovery, understand these forms, and understand what you are doing here today," to which [defendant] answered, "I would say none of them would impair my ability."
Judge Den Uyl concluded:
In summary, [defendant] was competent during his plea and was fully aware of his surroundings at the time. Although he now alleges that his psychological ailments made him unable to understand what was occurring, these exact ailments were discussed with Judge Citta on the record. Additionally, defendant has offered no additional support by way of medical opinion that his answers at the time were somehow incorrect as a result of his medical condition or the... medical treatments -- medications.
When viewing the transcript as a whole, this Court finds [defendant] was competent to enter a guilty plea and that he did so knowingly and voluntarily.
This review is further supported by the fact that prior to sentencing, [defendant] had moved to retract his guilty plea. At that time he stated that he pled guilty to a crime that he did not commit in order to protect his family. He made no mention of medical reasons for withdrawing his plea at that time. Having lost that motion, he now presents new grounds for retracting his plea. However, he does not offer any additional support other than what was known to the court on the day the plea was entered.
Therefore, [defendant] is not entitled to retract his plea as he has shown no grounds for doing so.
This appeal ensued.
Defendant raises the same arguments on appeal. He argues counsel failed to adequately meet with him to review discovery materials and potential defenses or trial strategy, counsel failed to investigate defendant's competency or the potential of a diminished capacity defense, and counsel failed to inform the trial court regarding defendant's mental state at the time of the guilty plea.*fn1 We are not persuaded by defendant's arguments and affirm substantially for the reasons articulated by Judge Den Uyl in his comprehensive oral decision on the motion.
As the PCR judge determined after providing a detailed recitation of the facts and case law, defendant is unable to satisfy either of the two prongs necessary to prevail on a claim of ineffective assistance of counsel, i.e., that counsel's performance was deficient and that such defect in performance prejudiced his rights to a fair trial such that there exists 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, l04 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (l984). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey). Nor has defendant demonstrated a reasonable likelihood that any of his claims will succeed on the merits, warranting an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (l992).
The record reflects counsel spent an adequate time preparing for the case and discussing the case with defendant. Defense counsel's time sheets reflect that he requested and reviewed defendant's medical records prior to trial. In rejecting defendant's claim of coercion, the PCR judge noted that in view of defendant's detailed inculpatory statement to police investigators, the victims' willingness to testify "as to repeated instances of sexual conduct inflicted upon them by their father," and the "complete lack" of physical or other exculpatory evidence with which to mount a defense, counsel provided an accurate assessment of the situation when he told defendant he had no available defenses and recommended he accept the extremely favorable plea offer. Furthermore, on June 21, 2004, counsel was prepared to reject the plea offered by the State and continue to trial but defendant interrupted the plea cutoff proceedings and, instead, voluntarily chose to plead guilty. Thus, as noted by the judge, defendant cannot demonstrate that he would have refused to plead guilty and proceed to trial but for his counsel's actions.
As to defendant's claim that counsel was ineffective in failing to investigate or obtain experts to determine defendant's competency to stand trial or enter a guilty plea, or whether he had a potential diminished capacity defense, as noted by the court, defendant has failed to explain what a further investigation would have revealed or how such a defense would have been successful. Nor has defendant provided any reports, affidavits or certifications of a medical expert that indicate any psychiatric defense or impairment caused by any of the medications he was taking. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. l99 (l999) (holding that to establish a prima facie claim of ineffectiveness of counsel, a defendant must do more than make bald assertions; he must assert the facts an investigation would have revealed, supported by affidavits or certifications of those with personal knowledge).
The Kimball and Ancora medical reports relied on by defendant do not appear to provide any indicia of incompetence or any other psychological defenses. Based on the report of the clinical psychiatrist who evaluated defendant at Ancora in October 2003, it seems the only indication of Bipolar Disorder was from defendant himself, who stated as a "[c]hief [c]omplaint" that "I sexually assaulted members of my family. I think I am Bipolar with these outbursts." To the contrary, the psychiatrist found, in pertinent part:
[Defendant] reports no hallucinations now or in the past. His speech was normal rate. His thought processes were without any ideas of reference, paranoia, delusions, obsessions, depersonalization, thought broadcasting or insertion.
There appeared to be no sustained elevated mood episodes. He did appear to have difficulty with the sexual issues as already described and outbursts of physical aggression which was not sustained. This did not constitute true Bipolar Disorder and it is imbedded within the context of personality difficulties leading him to be concerned primarily to meet his needs without recognizing the needs of others.
There was no display of any abnormal behavior that indicated any psychosis or mania that warranted ongoing hospitalization. His primary problems at the point of discharge were his social and legal problems. [Emphasis added.]
Lastly, as to defendant's claim that counsel was ineffective in failing to inform the trial court of defendant's medical condition at the time of the plea, there was nothing in the reports that indicated a mental disorder. Nevertheless, the judge was aware of defendant's potential medical issues and went through a painstaking colloquy with defendant to make certain he had eaten and was not feeling any weakness or abnormalities from his diabetic condition and, as previously stated, to determine whether defendant's plea was in any way affected by the medications he was taking. Thus, any issues surrounding the competency to accept the plea were thoroughly explored during the plea colloquy. Defendant repeatedly and unequivocally responded that he was feeling no adverse symptoms and that the medications he was taking did not impair his ability to enter the negotiated guilty plea and the record more than adequately supported this fact. As the record is devoid of any indication that defendant was not competent to stand trial or plead guilty, that he had any form of diminished capacity defense, or that he did not knowingly and voluntarily enter the plea with the assistance of able counsel, the judge properly denied defendant's PCR petition.