On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 07-04-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010
Before Judges Lihotz and J. N. Harris.
Defendant Jose I. Lewis appeals the April 17, 2009 Order denying his petition for post-conviction relief (PCR). We affirm.
On April 26, 2007, defendant was indicted on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), third-degree aggravated assault, with knowing bodily injury, N.J.S.A. 2C:12-1(b)(2) (count two), third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three), third-degree criminal restraint, N.J.S.A. 2C:13-2 (count four), armed robbery, N.J.S.A. 2C:15-1 (count five), and kidnapping, N.J.S.A. 2C:13-1(b) (count six).
The charges result from a September 5, 2006, in-home assault of Martine Cox. Defendant had bound and beaten Cox and, upon his departure, taken $1200 from her home.
Defendant entered pleas of guilty to counts one, second-degree aggravated assault; four, third-degree criminal restraint; and count five, as downgraded to second-degree robbery. The terms of the plea agreement provided that the State would dismiss the remaining charges, not move for an extended term sentence and recommend a nine-year term in prison, subject to an eighty-five percent parole ineligibility bar as provided by the No Early Release Act, N.J.S.A. 2C:43-7.2. Following a hearing, the trial court accepted the defendant's plea as knowingly and voluntarily made. The court was satisfied defendant waived his rights, including the right to remain silent, and be tried by a jury. On August 29, 2007, the trial judge sentenced defendant as recommended by the State and imposed applicable fines and penalties.
Defendant did not appeal his conviction or challenge his sentence. He filed a petition for PCR on July 8, 2008, principally certifying that "[d]uring the plea, [h]e was under the influence of . . . Thorazine, Haldol, and Elavil[,]" which "did not allow him to make a rational, knowing and intelligent waiver of his rights." Defendant argued trial counsel was ineffective because he should have advised the court of the influence of these medications. Defendant adds counsel's representation was deficient because he failed to challenge the grand jury proceeding, request full discovery from the State, move to suppress evidence, obtain an expert opinion regarding the mitigating effects of his substance abuse and mental health impairments, and otherwise properly prepare his defense.
PCR counsel was assigned and submitted a supplemental brief arguing defendant was under the influence of Seroquel, an antipsychotic "mood stabilizing medication used to treat his [b]i-polar disorder," which impaired his ability to freely comprehend the nature and consequences of his guilty plea. The brief notes an attached exhibit, not included in the record, but described in the State's submission as defendant's "own one-page handwritten letter, in which defendant states: I am requesting that my plea agreement be rescind[ed] as defective due to the fact I was under the influence of prescribe[d] medication, 900 mil Seroquel, 1500 mil Debaquale and did not fully understand the ramification of the said plea agreement."
Following argument, the PCR judge, who was not the trial judge, allowed defendant to add additional information, at which time he stated:
I'm not saying that I'm totally innocent or anything, but as far as the medication goes, before I was on it I was definitely a live wire, and after I was put on it[,] I was pretty much in a comatose state. I would do and say whatever anybody told me to do[.]
Defendant continued to explain that when he reached prison he was "a zombie," so prison medical officials switched his medication to Lithium.
In an April 14, 2009 oral opinion denying defendant's petition for relief, the PCR judge initially acknowledged the State's assertion defendant's claims were procedurally barred by Rule 3:22-4. Nonetheless, the PCR ...