On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-10-0811.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Skillman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we reverse and remand for a hearing limited to the issues of ineffective assistance of counsel as it relates to defendant's allegations that he lacked the requisite mental state to waive his Miranda*fn1 rights and to knowingly and voluntarily enter a guilty plea, and to consideration of defendant's motion to withdraw his guilty plea.
After waiving indictment, defendant pled guilty to an accusation charging him with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), as part of a plea agreement. This offense arose out of the bludgeoning to death of an employee of a tire store during the course of a burglary in which cash and a camcorder were stolen.
During the retraxit plea proceeding, the court questioned defendant regarding his understanding of his rights and the charges against him, the plea agreement, and his exposure at sentencing. However, although defendant was asked about his knowledge and desire to plead guilty, the court did not ask any questions regarding defendant's mental status or whether he had taken any medication that would affect his ability to make a knowing and voluntary decision to plead guilty. The factual basis for his guilty plea was provided almost exclusively by "yes" and "no" answers to leading questions by his attorney.
The sentencing court imposed an aggregate sentence of 35 years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on November 21, 2003. In September 2004, defendant moved to file an appeal nunc pro tunc. In his supporting certification, he stated he told his attorney "[r]ight after sentencing" that he wanted to appeal his conviction and sentence but no action was taken until he contacted the Office of the Public Defender in May 2004. His appeal was heard on an excessive sentencing calendar, and we affirmed his sentence by order dated August 3, 2005.
On January 18, 2008, defendant filed a pro se PCR petition, along with a supporting certification and a brief. He asked to withdraw his guilty plea, contending it was not knowing and voluntary because he was heavily medicated with psychotropic drugs for his mental illness. Defendant also stated that if he had known he would be required to serve thirty years before becoming eligible for parole, and that a five year period of parole supervision would be imposed, and additionally if he had not been so heavily medicated, he would not have accepted the plea offer. In support of his claim of ineffective assistance of counsel, defendant stated his trial attorney did not take his calls, did not interview any witnesses, did not file any motions on his behalf, and only wanted to discuss accepting a plea offer. Defendant also argued that his guilty plea should be withdrawn because it was based on a "fatally defective" accusation and on incorrect assumptions about sentencing.
In May 2009, with the assistance of counsel, defendant submitted another certification and brief. In defendant's supporting certification, he stated he did not kill the victim; that he has "a history of drug use and previous psychiatric treatment," and that, on the day he was arrested and questioned by police, he "had used multiple bags of heroine [sic] and around that time period, i.e., July of 2003, was regularly making use of multiple bags of heroine [sic] everyday. Defendant raised additional claims: trial counsel's pretrial investigation was insufficient; trial counsel was ineffective for not moving to suppress statements made by defendant; trial counsel had a conflict of interest; and the cumulative effect of various errors and instances of counsel's ineffectiveness deprived him of a fair trial. He argued further that his petition should not be procedurally barred because his claims were not cognizable on direct appeal.
A police report provided some corroboration for defendant's contention that he was under the influence of heroin at the time he made at least one incriminating statement. Defendant was arrested on the day the victim's body was discovered. In his report, Detective Robert Pietrzak described his interview with defendant at approximately 8:35 p.m. that night. After advising defendant of his Miranda rights, he asked defendant if he had ever been inside the tire store where the murder occurred. When defendant denied being there, Detective Pierzak asked him about red stains on his pants and the pattern on his sneakers that matched footprints left on the roof and floor of the store. Defendant replied, "The evidence is all over me." Detective Pietrzak's report then states, "During this interview, which lasted approximately 10 minutes, Sheppard appeared that he might be under the influence of some type of drugs." He stopped the interview and took defendant outside where he allowed him to smoke a cigarette. While outside, defendant stated he had purchased two bags of heroin that morning and last used heroin at 4:00 p.m.
Another attempt was made to interview defendant shortly after midnight. After being advised of his Miranda rights a second time, he invoked his right to counsel and questioning ended. However, he then asked Detective Pietrzak about his possible exposure. After answering, "thirty to life," Detective Pietrzak left the room. He returned after being told defendant asked to see him, gave defendant Miranda warnings for a third time and proceeded to take a statement from him.
Defendant's petition was also supported by a report prepared by Edward J. Dougherty, Ed.D., a psychologist who conducted a psychological evaluation of defendant that included a clinical interview and psychological tests. Dr. Dougherty reported that defendant experienced severe withdrawal symptoms from heavy use of heroin, cocaine and alcohol. He was given drugs to combat withdrawal symptoms, which caused insomnia, and prescribed Seroquel*fn2 for the insomnia. Defendant also reported receiving psychotropic medications during the course of the plea negotiations due to "possible depressive episodes" and that he was taken off medication after his plea agreement. The psychologist concluded defendant "was under the influence of drugs and/or alcohol which impaired his ability to knowingly, intelligently, and voluntarily 'waive' his Miranda rights." He further concluded that "[defendant's] ability to understand and enter into a plea was impaired due to the taking of prescribed psychotropic medication (Seroquel) at the time of his plea hearing and his competency to proceed should have been evaluated at the time of his plea."
The PCR court acknowledged the evidence submitted by defendant regarding his depression, including an evaluation in 2000 that defendant was exhibiting signs and symptoms of major depression that had become "of grave concern" and evidence of "a longstanding history of extreme drug abuse." However, the court concluded that, because the proofs submitted "failed to substantiate or establish a specific mental disease or defect relevant to the elements of the offenses that would negate the state of mind element required," defendant failed to establish a prima facie showing of ineffective assistance of counsel based upon a failure to investigate his mental condition. In addressing defendant's claim that his counsel was ineffective in failing to file a suppression motion, the court stated that, because defendant pled guilty to an accusation, "any failure to make the suppression motion as asserted by the defendant falls flat because the matter had not yet reached trial and can not [sic] be deemed as unreasonable or not ...