On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 99-04-0219 and 99-04-0230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Lisa, Sabatino and Alvarez.
Defendant appeals from an order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant is serving two consecutive sentences of life imprisonment, each with a thirty-year parole disqualifier, for two counts of first-degree knowing or purposeful murder. N.J.S.A. 2C:11-3(a)(1),(2). The murders occurred in separate incidents, three years apart. The first was for the murder of Paula Strazdas in 1995, and the second was for the murder of Nancy Nott in 1998. In separate indictments, defendant was charged with capital murder in each case. As part of the plea negotiation process, the State agreed that in exchange for a plea of guilty to both indictments it would not seek the death penalty and accordingly would not file a notice of aggravating factors. The parties entered into a written plea agreement that recommended consecutive sentences of life imprisonment with a thirty-year parole disqualifier for the 1995 offense, which occurred prior to the adoption in 1997, see L. 1977, c. 117, §2, of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and life imprisonment subject to a NERA parole disqualifier of sixty-three years and nine months for the 1998 offense, which occurred after NERA was adopted.
Defendant pled guilty on November 9, 1999 pursuant to the plea agreement. However, prior to his sentencing, he moved to withdraw his guilty plea. New counsel was assigned to represent defendant on the motion. Although various grounds for withdrawal were asserted, defendant ultimately relied upon a single contention, namely that he lied in providing a factual basis for the crimes. In a certification, he contended that he did not kill Strazdas and that he did not "purposely intend to kill" Nott. When pleading guilty, he had acknowledged shooting Strazdas twice in the head with the purpose to kill her. In his PCR certification, he contended he was innocent of murdering Strazdas, stating he "did not shoot her." At his plea hearing, defendant said he killed Nott by beating her over the head with a baseball bat and acknowledged that he did so with the purpose of killing her. In his PCR certification, he did not deny killing Nott, but contended that causing her death was not his purpose when the homicidal act occurred.
Judge Edward M. Coleman presided over all trial court proceedings in this case. At the hearing on the motion to withdraw the plea, Judge Coleman addressed defendant directly and heard his verbal assertion in open court of his claim of innocence regarding both crimes. The judge found the assertion totally lacking in credibility, noting by extensive reference to the transcript of the plea proceeding that at that proceeding defendant clearly and unequivocally admitted his guilt and stated that the factual basis he provided for each crime was true. The judge accordingly denied the motion to withdraw the plea.
On May 22, 2000, Judge Coleman imposed the sentence recommended in the plea agreement. Defendant filed an appeal, which was assigned to our excessive sentence oral argument calendar. See R. 2:9-11. Defendant's appellate counsel raised two issues: (1) that defendant's motion to withdraw his plea should have been granted because "[i]f, in fact, the defendant was not truthful and he was lying, then there's no factual basis for the plea," and (2) that the sentence on the 1998 offense did not comport with the version of NERA then in effect. See State v. Manzie, 168 N.J. 113 (2001), superceded by statute, L. 2001, c. 79, § 16 (codified as amended at N.J.S.A. 2C:43-7.2). A panel of this court issued an order on October 22, 2001 remanding for reconsideration in light of Manzie. The order was silent as to the argument relating to withdrawal of the plea. On remand, in accordance with Manzie, Judge Coleman modified the sentence on the post-NERA offense to life imprisonment subject to a thirty-year parole disqualifier and entered an amended judgment of conviction to that effect.
On February 18, 2004, defendant filed a pro se PCR petition, which was later amended after counsel was assigned.
He raised seven issues. Five alleged ineffective assistance of trial counsel for (1) failing to have defendant adequately examined to evaluate a diminished capacity defense, (2) failing to provide defendant with discovery, (3) failing to move to vacate defendant's guilty pleas when the State violated the terms of the plea agreement, (4) failing to present mitigating factors at sentencing, and (5) failing to present documentation of defendant's military service and resultant psychiatric sequelae at sentencing. The remaining two issues were (6) that defendant's guilty pleas were not truthful and were the product of coercion by trial counsel and (7) that the court was presented with an inadequate presentence report.
At a PCR hearing on May 28, 2008, Judge Coleman heard the arguments of both counsel and considered the certification filed by defendant. He concluded that to resolve some of the issues an evidentiary hearing was required. In particular, he ordered that an evidentiary hearing would be conducted regarding discussions about the use of post traumatic stress disorder as diminished capacity defense; whether the result of evaluations were done in an appropriate manner by defense counsel; on the issues of whether or not the discovery was made available to the Defendant; and whether or not the Defendant was coerced into entering a plea of guilty as he claims.
Therefore, claims (1), (2) and (6) would be decided after an evidentiary hearing. However, the judge found that claims (3), (4), (5) and (7) were procedurally barred because all of the information required to evaluate them was contained in the record of prior proceedings and the issues could have been raised on direct appeal. See R. 3:22-4. The judge also found that those claims lacked substantive merit, and he expressed his reasons for those findings in considerable detail.
The evidentiary hearing was conducted on August 18, 2008. Defendant testified, as did the attorney who represented defendant at the time of his plea. Defense counsel explained that he obtained two separate mental health evaluations of defendant. The reports of those evaluations were admitted in evidence. Neither supported a diminished capacity defense. Defendant was a combat veteran of the Vietnam war, and he was discharged from the Marine Corps with a disability derived from post-traumatic stress disorder (PTSD). The evaluators acknowledged the existence of that condition. However, neither could relate the effects of defendant's mental disorder to any lack of ability to act knowingly or purposely at the time of the murders.
According to defense counsel, he thoroughly discussed with defendant the viability of a diminished capacity defense. He advised defendant that the defense was, at best, a weak one that was not likely to prevail. He further advised defendant that the proofs of defendant's guilt in both cases were overwhelming and that a significant potential for a death sentence existed. He recommended that defendant plead guilty to save his life. Defense counsel stated that defendant fully understood the weakness of any potential diminished capacity defense, agreed to waive that defense (which defendant ...