October 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MUSTAFA MINOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-12-1584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9e; and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2a. As a result of plea negotiations, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. In exchange, the State agreed to dismiss the remaining counts contained in the indictment and to recommend a thirty-year custodial sentence with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant in accordance with the plea agreement, concurrent with a custodial sentence defendant was already serving in connection with an unrelated conviction.
Following our review of defendant's sentence on the Excessive Sentence Oral Argument (ESOA) calendar, we remanded the matter for re-sentencing pursuant to State v. Freudenberger, 358 N.J. Super. 162, 168-170 (App. Div. 2003) (holding that because parole supervision under NERA is unique, a defendant is entitled to be informed of NERA's special parole supervision conditions before pleading guilty to a NERA offense). Upon conclusion of the Freudenberger remand hearing, the court denied defendant's motion to withdraw his guilty plea and entered a new judgment of conviction that left the original sentence undisturbed. Defendant did not file a direct appeal from this ruling. Rather, defendant filed his PCR petition. Judge Rothstadt conducted oral argument and, at its conclusion, issued an oral decision denying defendant's petition.
On appeal, defendant raises the following points for our consideration:
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN STRICKLAND V. WASHINGTON, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),] STATE V. PRECIOS[E], [129 N.J. 451 (1992),] AND STATE V. CUMMINGS, [321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999),] UNDER R[ULE] 3:22 CRITERIA[,] THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO ALLOW THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA OR TO BE RE[-]SENTENCED BASED ON A CONSIDERATION OF ALL APPLICABLE MITIGATING FACTORS AND ALL APPLICABLE STATE V. NATALE[, 184 N.J. 458 (2000),] SENTENCING ISSUES. POINT II
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE PROSECUTOR'S IN-COURT AMENDMENT TO THE INDICTMENT VIOLATED DEFENDANT'S RIGHT TO A GRAND JURY UNDER ARTICLE I, ¶ 8, OF THE NEW JERSEY CONSTITUTION.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION [FOR] POST-CONVICTION RELIEF FILED BELOW.
A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting a defendant's right to counsel under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant must also establish "'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." Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
In a January 29, 2004 competency evaluation report prepared by Dr. Daniel Greenfield, the doctor opined that defendant was not competent to stand trial. Based upon this report, defendant contends trial counsel was ineffective in failing to seek a more extended evaluation which would have revealed exculpatory evidence, namely, evidence that defendant suffered from a mental disease or defect relevant to defendant's state of mind at the time of the commission of the offenses. Beyond this contention, defendant presented no evidence before the PCR judge to support his claim that "a more extended evaluation [of defendant] could provide evidence that the defendant even lacked the mens rea to commit the crime of aggravated manslaughter." As such, this contention is nothing more than a bald assertion. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that to raise a successful claim, a defendant must make more than mere "bald assertions" of ineffective assistance). Moreover, although indicted for first-degree murder, as a result of plea negotiations, defendant pled guilty to aggravated manslaughter. Thus, assuming Dr. Greenfield's report should have prompted further evaluation, the purpose of such evaluation would have been to negate an essential element of the murder charge, defendant's purposeful or knowing state of mind at the time of the homicide. Because the State, in accordance with a negotiated plea agreement, amended the indictment to charge defendant with the lesser-included charge of aggravated manslaughter, defendant was not prejudiced by trial counsel's failure to seek a further evaluation of defendant.
Turning to defendant's claim that trial counsel failed to advise him of the special parole supervision provision of a NERA sentence, this contention was first raised and rejected by the court in January 2008 when defendant sought to vacate the entry of his guilty plea. Defendant did not file a direct appeal nor raise this issue before the PCR judge. Thus, this claim is barred pursuant to Rule 3:22-5, which provides: "A prior adjudication upon the merits of any ground for relief is conclusive[.]" Further, it is evident from our review of the record of the plea hearing that defendant was advised of the NERA parole supervision conditions, which conditions were provided to defendant in writing and explained to him on the record in open court.
The remaining points are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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