September 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-10-1419.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Alvarez and Nugent.
Defendant Larry Johnson appeals the October 19, 2009 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
On January 30, 2006, defendant entered a guilty plea to first-degree armed robbery, N.J.S.A. 2C:15-1, in exchange for the State's agreement to recommend a sentence of ten years imprisonment subject to the No Early Release Act (NERA) eighty-five percent parole disqualifier. See N.J.S.A. 2C:43-7.2. Days later, on February 3, 2006, defendant filed a pro se motion to withdraw his guilty plea. Defendant was represented by a second attorney at the May 19, 2006 motion and sentence hearing. The motion was denied and defendant was sentenced in accord with the plea agreement.
Defendant subsequently appealed to the Excessive Sentence Calendar pursuant to Rule 2:9-11. That appeal was denied on March 3, 2008, and thereafter defendant filed a pro se petition for PCR, which was dismissed without prejudice on January 30, 2009. On June 15, 2009, defendant filed a second petition for PCR, which was heard on October 8, 2009, and denied in a written decision on October 19, 2009. We affirm that denial essentially for the reasons stated in the opinion, adding only the following brief comments.
Defendant raises the following points:
THE ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
A. The Defendant Was Denied Effective Assistance of Plea Counsel
1. Plea Counsel's Performance Fell Below An Objective Standard of Reasonableness Because She Failed To Investigate Defendant's Competency Although Sufficient Indicia of Defendant's Incompetency Existed
2. The Results Of The Proceeding[s] Would Have [Been] Different But For Plea Counsel's Error Because Defendant Lacked The Competency To Enter Into A Guilty Plea
3. The Court Should Remand This Case To The Trial Court To Permit The Defendant To Withdraw His Guilty Plea Because Plea Counsel's Errors Denied Defendant The Effective Assistance Of Counsel
a. Mr. Johnson presented a colorable claim of innocence
b. The nature and strength of Defendant's reasons for withdrawal weigh in favor of the motion to retract the plea
c. Defendant is entitled to withdraw his plea notwithstanding the guilty plea
d. The withdrawal of the plea would not result in unfair prejudice to the State or unfair advantage to the accused
B. Sentencing Counsel Rendered Ineffective
Assistance Of Counsel When They Failed To Present Defendant's Disparity of Sentence Claim
THE PCR COURT ABUSED ITS DISCRETION WHEN IT APPLIED THE PROCEDURAL BAR OF R. 3:22-4 TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF
THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980); see also State v. Perry, 124 N.J. 128, 153 (1991).
Defendant contends that his first attorney failed to adequately investigate his competency. To substantiate the claim, defendant provides us with an August 8, 2000 "Neuropsychological Evaluation," a December 7, 2000 "Outpatient Neurocognitive Rehabilitation Program Initial Case Conference Summary," as well as an undated document which purports to be a New Jersey Department of Corrections consent for medical treatment.
The consent form notes that defendant was prescribed medication for a "major depressive disorder;" it indicates that defendant neither consented to the recommended treatment nor agreed to sign the document. The consent form does not prove anything; it does not cast doubt on defendant's competence in 2006.
The 2000 records relate to educational and cognitive issues defendant experienced that year resulting from a closed head injury. But neither the 2000 documents nor the consent form support a prima facie claim that counsel's failure to raise the issue of defendant's competence or to otherwise assert defendant's mental status as a defense was deficient representation or prejudicial to the outcome of the case.
As the PCR judge observed, during his presentence interview defendant said that he had completed two years of community college. Defendant also said that he had been planning to transfer to Rutgers University at around the time the crime occurred. We therefore agree with the judge that, on its face, defendant's successful pursuit of higher education contradicts the existence of an impairment in adulthood as described in the 2000 records. In sum, these records fall short of establishing a prima facie case that defendant's attorney was ineffective because he failed to investigate defendant's competency.
Furthermore, at the time defendant entered his guilty plea, he was extensively queried. His responses, albeit brief, were entirely appropriate to the questions asked. Not only did defendant acknowledge his knowing, intelligent, and voluntary waiver of his right to the trial, he readily established a factual basis. As defendant said, he "threatened [the victims] with the knife. I had the knife and threatened them. I had the black shirt and everything." When the court asked defendant his reasons for doing so, he said he "[t]ook the check from him." Nothing about defendant's responses to the court's queries when he entered the guilty plea raised a question about his competence or a doubt as to his understanding of the proceedings.
Defendant also seeks to revisit his petition to withdraw his guilty plea, filed prior to his sentence date, under the guise of ineffective assistance of his first counsel, who negotiated his agreement with the State. One of the grounds defendant advanced as justifying his 2006 petition to withdraw his guilty plea, when represented by his second attorney, was the alleged disparity in sentencing between him and his co-defendant, a juvenile. Defendant did not appeal the denial of his petition. We agree with the PCR judge that consideration of this question is therefore barred by Rule 3:22-5, as it was previously adjudicated and the decision was not appealed.
Even if the rule did not bar consideration of the issue of withdrawal of the guilty plea, as stated by the PCR judge, defendant has not raised a "colorable claim of innocence," as required by State v. Slater, 198 N.J. 145, 158 (2009). The victim described two assailants, both of whom were carrying knives. The suspect, matching defendant's description, wore a black shirt, a detail mentioned by defendant when he entered his guilty plea. Police found the check taken from the victim on defendant's person while investigating another matter. Most significantly, however, nowhere in this record have we been provided with an unambiguous, factually supported assertion of innocence as required by Slater. See ibid.
An evidentiary hearing on PCR is necessary only when a defendant has established a prima facie case. See State v. Murray, 162 N.J. 240, 250 (2000). Defendant's record support for his petition does not rise to that level, and accordingly it was not error for the court to have denied the request.
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