On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-05-1884.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Payne and Messano.
Defendant James Barnes appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. In a single point he argues:
PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WITH RESPECT TO THE CHALLENGE OF PETITIONER'S ENTRY OF THE GUILTY PLEA TO ESCAPE THE HEALTH ISSUES CAUSED HIM BY THE CONDITIONS AT THE ESSEX COUNTY JAIL
We have considered the argument in light of the record and applicable legal standards. We affirm.
On November 9, 2004, defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Under the terms of the plea bargain, the State agreed to dismiss the remaining counts of the indictment that charged defendant with four additional first-degree robberies and related offenses, and to recommend a maximum sentence of ten years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. When questioned by the judge, defendant claimed he was taking "antibiotics and something else" for "an infection from the toxic fumes in the jail." However, he also asserted that he was not under the influence of any drugs that affected his ability to comprehend the proceedings.
Thereafter, prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea. Among other things, defendant asserted he was innocent and that he "did not understand the nature of the charges and consequences of the plea." He also claimed "it [wa]s clear" from his "erratic conduct" that "he [wa]s mentally unstable."
On June 20, 2005, a second judge, armed with the transcript of the plea proceedings as well as defendant's medical records from the jail, denied defendant's motion. Defendant then appeared before the original judge who had accepted his guilty plea and was sentenced in accordance with the plea bargain.
On February 16, 2007, defendant withdrew his direct appeal after it was filed. In March, defendant filed a pro se PCR petition alleging that he had "lied to the judge to save [his] life" when he pled guilty. Defendant claimed he was "diagnose[d] [with] toxic fumes... from the Essex County Jail[,]" and was "on serious medications" as a result.
Defendant again claimed he was innocent of the charges. In what appears to be a supplemental submission, assigned PCR counsel attached a copy of an investigative report paraphrasing statements made by Carolyn Roxborough, defendant's girlfriend at the time of the offenses. Roxborough claimed that defendant stayed with her in Woodbine, Cape May County, during the days he allegedly committed the robberies in Newark that were charged in the indictment.
In a written opinion dated February 20, 2008, the PCR judge concluded that defendant had presented a prima facie case for relief and ordered an evidentiary hearing. Defendant testified that he told his attorney about the conditions at the jail and how it was affecting his health. Furthermore, defendant claimed to have told his various attorneys of Roxborough's identity and his alibi defense.*fn1
Roxborough also testified. She acknowledged that defendant's PCR counsel was the first person to contact her on defendant's behalf. While she continued to claim that defendant was with her in Woodbine between December 11 and 18, 2003, she admitted that she did not see him between 2000, when they first met, until that ...