July 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON SHEPPARD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
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 in accord with prevailing professional norms." Concluding that defendant had "failed to establish by a preponderance of the evidence, a prima facie claim of ineffective assistance of counsel[,]" the PCR court denied defendant's petition on September 28, 2009.
Defendant presents the following issues for our consideration in his appeal.
THE PCR COURT ERRED IN DENYING PETITIONER AN EVIDENTIARY HEARING.
A. PETITIONER'S RIGHT TO COUNSEL WAS VIOLATED WHEN HE WAS NOT GIVEN THE ABILITY TO CHOOSE TO ACCEPT OR REJECT HIS ATTORNEY WHO MAY HAVE HAD A CONFLICT OF INTEREST
B. TRIAL COUNSEL WAS DEFICIENT BECAUSE HE FAILED TO FILE A MOTION TO SUPPRESS PETITIONER'S STATEMENTS
C. TRIAL COUNSEL AND ESOA COUNSEL WERE DEFICIENT BECAUSE THEY ALLOWED PETITIONER TO PLEAD GUILTY EVEN THOUGH PETITIONER COULD NOT KNOWINGLY AND VOLUNTARILY PLEAD GUILTY
D. TRIAL COUNSEL WAS DEFICIENT BECAUSE HE FAILED TO INVESTIGATE THIRD PARTY LIABILITY
E. TRIAL COUNSEL'S DEFICIENT PERFORMANCE PREJUDICED PETITIONER
F. PETITIONER'S PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE HE DID NOT UNDERSTAND ITS TERMS
IN THE ALTERNATIVE, THIS COURT MUST REMAND THE MATTER TO THE PCR COURT TO EXPAND THE RECORD SO THAT PETITIONER CAN FULLY PRESENT HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
We agree that an evidentiary hearing is required to review defendant's claims of ineffective assistance of counsel based upon his assertion that his mental state precluded a valid waiver of his Miranda rights or a knowing and voluntary guilty plea. We are satisfied that the remaining arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result." Strickland v. Washington, 466 U.S. 668, 686, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); see also, State v. Savage, 120 N.J. 594, 613 (1990). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test formulated in Strickland, supra, and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987), establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
This test also applies to challenges to guilty pleas based upon the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Within that context, the two-prong test has been described as follows. Under the first prong, defendant must demonstrate that his plea was not voluntary because "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)); see also State v. Nunez-Valdez, 200 N.J. 129, 139 (2009). To satisfy the second prong, a defendant must establish that "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210)). However, when the errors are so grave that "no amount of showing of want of prejudice could cure it[,]" it is unnecessary for a defendant to demonstrate prejudice. United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 668 (1984); see also Savage, supra, 120 N.J. at 614-15.
A trial court should grant an evidentiary hearing to resolve ineffective assistance of counsel claims if defendant has presented a prima facie case in support of post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992). In determining whether defendant has established a prima facie claim, "courts should view the facts in the light most favorable to a defendant[.]" Id. at 462-63.
The issues for the PCR court to determine here were not whether the evidence presented by defendant was sufficient to establish a defense based upon his mental capacity or whether defense counsel customarily file suppression motions when a defendant pleads guilty to an accusation. Instead, the issue was whether the evidence of defendant's mental state, based upon either the influence of drugs or his mental health, presented circumstances in which an attorney acting within "the range of competence demanded of attorneys in criminal cases" would take further action to investigate whether defendant was able to make a knowing and voluntary guilty plea and a valid waiver of his Miranda rights. The PCR court was required to view the evidence in the light most favorable to defendant to determine whether he had made a prima facie showing of ineffective assistance of counsel. As the PCR court acknowledged, that evidence, unrefuted as of now, indicated defendant was substantially impaired due to drug use when interrogated and under the influence of psychotropic medication at the time he entered his guilty plea.
As previously noted, the voluntariness of defendant's plea depends on whether the representation provided by his counsel at that stage "was within the range of competence demanded of attorneys in criminal cases." DiFrisco, supra, 137 N.J. at 434. In Savage, defense counsel failed to question the defendant about his drug use on the night preceding the murder or his possible drug addiction and never inquired about his prior psychiatric hospitalization. Our Supreme Court found that counsel's failures in investigation, including the failure to investigate a psychiatric defense warranted by the circumstances, amounted to a failure "'to make the adversarial testing process work[.]'" 120 N.J. at 468-69 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
The record here fails to show that defendant's trial counsel made any inquiry or investigation to determine whether there was a factual basis for challenging his statement to police or to be satisfied that he could enter a knowing and voluntary guilty plea. And, unfortunately, this is not a case in which defendant's mental condition was "fully explored at the time of the plea, and the plea was then found to be knowingly, voluntarily and intelligently given." State v. Colon, 374 N.J. Super. 199, 222 (App. Div. 2005). Similarly, the record fails to show any investigation by defense counsel of the unrefuted fact that, at least at the inception of questioning, defendant was apparently sufficiently "under the influence" of heroin to cause the investigating officer to terminate the interview.
We are satisfied the evidence provides a prima facie showing that required defense counsel to investigate whether defendant lacked the mental capacity to make a knowing and voluntary waiver of his rights at these two critical stages of his prosecution. Without an evidentiary hearing, the record is inadequate to determine whether counsel's alleged inaction resulted in a failure "to make the adversarial testing process work."
We therefore remand this matter for the court to conduct a hearing to resolve what, if any, investigation trial counsel conducted regarding defendant's mental capacity when each of the incriminating statements were made and at the time he entered a guilty plea. The court should determine whether counsel's conduct "was within the range of competence demanded of attorneys in criminal cases." In the event the court should find that counsel's conduct fell below that standard, the question remains whether the circumstances precluded a voluntary waiver of rights. Finally, the court should review defendant's motion to withdraw his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009) and R. 3:21-1.
We reverse the denial of the PCR petition and remand for a hearing limited to the issues described herein and consistent with this opinion. We do not retain jurisdiction.