October 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN J. KORMAN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 acknowledged on the record in open court when he pled guilty), and that defendant knowingly and voluntarily pled guilty without any coercion or threats.
Defendant testified that his plea attorney told him a diminished capacity defense was not possible and denied that defendant suffered from PTSD. Defense counsel expressly denied in his testimony that he ever told defendant that he did not suffer from PTSD. Defense counsel further testified that defendant was amenable to pleading guilty and avoiding a capital prosecution, not only to save his life, but to assure that he would be able to live under the more favorable conditions in the general prison population rather than on death row.
The defense presented the December 22, 2007 report of a neuropsychologist who evaluated defendant and concluded that his severe PTSD and substance abuse since his days in Vietnam constituted a "severe mental disorder," which "reflects a state of diminished capacity." The evaluator opined that it was "likely that during the time of the criminal events [defendant] similarly experienced diminished mental capacity as a consequence of his history and mental status."
Defendant testified that the factual basis he presented in connection with his plea was a lie. He said he did not want to plead guilty but felt he had no choice because his attorney refused to assert a diminished capacity defense, which defendant believed to be the only plausible defense available to him. He said his plea counsel coerced him by repeatedly telling him that the plea was the only way to save his life. As we stated, defendant's plea counsel denied any coercion in this regard.
With respect to the discovery issue, defendant's attorney testified that he reviewed all discovery with defendant in his various meetings with him in the county jail. He explained that he told defendant he would not leave copies of the discovery materials with him in the jail because of his concern that, given the notoriety of the case, jailhouse informants would attempt to obtain the discovery and use it for their own gain.
Judge Coleman found defendant's plea attorney credible and defendant incredible. He found there was no coercion in connection with the plea and that counsel's determination not to leave copies of the discovery materials with defendant in the jail was a "sound tactical decision" and that counsel had reviewed and discussed all of the discovery materials with defendant. The judge found that counsel conducted an adequate investigation into a potential diminished capacity defense and that, based upon the expert reports he received at the time, reached a sensible conclusion that the PTSD diagnosis could not support such a defense. Advising defendant of that conclusion and recommending that a diminished capacity defense not be pursued was competent legal advice based upon a sufficient investigation. It did not constitute coercion but was the kind of legal advice one would expect from an attorney. The same was true of counsel's recommendation that defendant plead guilty to avoid a death sentence. The judge rendered his oral decision on the issues addressed in the evidentiary hearing on September 3, 2008.
Accordingly, on all issues raised in the PCR proceeding, Judge Coleman found no deficient performance by defendant's trial counsel at the time of plea or sentencing. He therefore denied the PCR petition and entered an order to that effect. This appeal followed.
THE ORDER DENYING POST-CONVICTION RELIEF ON POINT III, POINT IV, POINT V, AND POINT VII, IN THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING BECAUSE THE COURT MISAPPLIED THE PROCEDURAL BAR OF R. 3:22-4.
TRIAL COUNSEL'S FAILURE TO MOVE TO VACATE THE DEFENDANT'S GUILTY PLEA BASED ON THE STATE'S VIOLATION OF THE PLEA AGREEMENT; TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCE; TRIAL COUNSEL'S FAILURE TO PRESENT DOCUMENTATION CONCERNING THE DEFENDANT'S MILITARY RECORD AND MENTAL HEALTH HISTORY AT SENTENCE; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO AN INADEQUATE PRESENTENCE REPORT; VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL.
DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED BECAUSE A SENTENCE IMPOSED ON A DEFENDANT WHOSE CONVICTION WAS THE RESULT OF THE DEPRIVATION OF A FUNDAMENTAL CONSTITUTIONAL RIGHT IS "ILLEGAL."
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
TRIAL COUNSEL'S BELIEF THAT HIS PRIMARY OBLIGATION WAS TO "SAVE THE DEFENDANT'S LIFE" INSTEAD OF ESTABLISHING A REASONABLE DOUBT AS TO HIS GUILT OF A FIRST DEGREE MURDER RESULTED IN A DEFICIENT PERFORMANCE.
UNDER THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST, INSTEAD OF APPLYING APPROPRIATE R. 3:22 CRITERIA FOR PREJUDICE, THE COURT INFERENTIALLY APPLIED AN IMPROPER "OUTCOME DETERMINATIVE" STANDARD.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO ANCILLARY SERVICES AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN ANY PRO SE POST-CONVICTION RELIEF SUBMISSION AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
We reject these arguments and affirm substantially for the reasons expressed by Judge Coleman in his thorough oral decisions of May 28, 2008 and September 3, 2008. For the sake of completeness, we add the following comments.
A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the Strickland standard applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 209-10 (1985); State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. Difrisco, 137 N.J. 434, 457 (1994)). In this context, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). The defendant must demonstrate that the attorney's deficient performance prejudicially affected the plea process and must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210.
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.
Finally, PCR petitions are subject to certain procedural bars. Rule 3:22-4 bars a claim if "[defendant] could have, but did not, raise the claim in a prior proceeding." State v. Preciose, 129 N.J. 451, 459 (1992). The rule provides three exceptions allowing a claim to be raised in a PCR proceeding even if it could have been raised in a prior proceeding:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction,... or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
The exceptions to this rule apply only in "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 587 (1992).
We agree with Judge Coleman that several of defendant's claims fail to meet the exceptional circumstances standard for an exception to the procedural bar of Rule 3:22-4. We also agree that the procedurally barred claims lack substantive merit. We briefly comment on each of those four claims.
Defendant argues that his counsel was ineffective for failing to move to vacate the plea agreement when the State violated the terms of that agreement. The alleged violation is that at the time of sentencing, the prosecutor urged the court to find several aggravating factors under N.J.S.A. 2C:44-1(a). Defendant argues that this violated the prosecutor's agreement not to file a notice of aggravating factors. It is patently obvious that in the context of that agreement, "aggravating factors" referred to the capital aggravating factors contained in N.J.S.A. 2C:11-3c(4), repealed by L. 2007 c. 204, not to the aggravating factors applied generally in non-capital cases under N.J.S.A. 2C:44-1(a). There was no violation of the plea agreement.
Defendant's argument that his trial counsel failed to argue relevant mitigating factors is equally without merit. He contends his attorney should have argued the following mitigating factors under N.J.S.A. 2C:44-1b: (2) defendant did not contemplate that his conduct would cause or threaten serious harm, (3) defendant acted under strong provocation, (4) there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, and (5) the victim of defendant's conduct induced or facilitated its commission. Indeed, defendant's counsel did argue mitigating factor (4), based upon defendant's mental health history, including his PTSD resulting from his military service. The judge agreed and found that the mitigating factor was present. Mitigating factor (2) was plainly not applicable to these heinous violent crimes. There was no evidence in the record to support any plausible basis for application of mitigating factors (3) or (5). There was no deficient conduct here.
In two related claims, defendant contends that his trial counsel was ineffective for not presenting the court at sentencing with documentation of his military service records and resulting psychiatric problems, and that the court was presented with an inadequate presentence report. As Judge Coleman recounted in detail, information regarding these matters was in the presentence report, was argued by defense counsel and considered by the court at sentencing, and the additional materials submitted in the PCR proceeding did not shed any additional light on the subject that would have altered the sentence.
Defendant's remaining three claims were resolved after an evidentiary hearing. Those dealt with the adequacy of trial counsel's diminished capacity investigation and analysis, whether counsel provided defendant with all discovery materials, and whether the guilty pleas were not truthful and were the product of coercion. The judge made credibility determinations and factual findings which are amply supported by the record of the evidentiary hearing and we defer to those findings. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
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