On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-11-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Payne and Simonelli.
Defendant Luis Mendez appeals from the March 23, 2010 order, which denied his petition for post-conviction relief (PCR). We affirm.
At approximately 1:00 a.m. on July 31, 2001, two young men entered a liquor store in Paterson where defendant was working. They got into an argument with defendant's father-in-law, and left the store with beer without paying. Defendant then left the store to confront the young men, and an argument ensued. The young men threw bottles and a garbage can at defendant, which upset him. Defendant returned to the store, retrieved a gun, went back outside, and shot and killed a seventeen-year-old boy who was an innocent victim. Videotape evidence of defendant retrieving the gun from the store, eyewitnesses to the shooting, and defendant's confession provided overwhelming evidence of defendant's guilt.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1); 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; and two counts of third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1). On the day of trial, defendant pled guilty to an amended charge of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), in exchange for the State's agreement to dismiss the remaining charges and recommend a ten-year term of imprisonment subject to an eighty-five percent period of parole ineligibility and three years of parole supervision upon release pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the plea hearing, defendant admitted that he acted without thinking or acted recklessly at the time he fired the gun. Defendant also acknowledged that his sentence was subject to NERA; trial counsel read each question on the plea forms to him;*fn1 he understood and answered each question and initialed and signed the plea forms; he voluntarily pled guilty no one forced him to do so; he was satisfied with trial counsel's services; and he had no questions about his plea.
After the plea hearing, defendant fled to the Dominican Republic and failed to appear for sentencing on October 3, 2003. His bail was revoked, and a bench warrant was issued for his arrest.
Defendant returned to the United States in November 2003, and sentencing occurred on February 6, 2004. At sentencing, the trial judge reviewed the pre-sentence report, which indicated that defendant claimed that "he has not been the same since being shot" in 1999, and that he "maintained his plea of guilty . . . and offered no further comments." The judge was also advised that defendant was robbed and shot at the same liquor store in 1999, received treatment for post-traumatic stress disorder as a result of that incident, claimed that he fired the gun in this incident out of fear and because he was being attacked, and was acting "in the heat of passion." The prosecutor responded that the State had taken this information into account in formulating the plea offer.
Although the judge acknowledged the adverse effect that the 1999 incident had on defendant's life, he emphasized that defendant faced life imprisonment if convicted of first-degree murder, and that based on the evidence, there was a "strong possibility" that a jury would have convicted him of aggravated manslaughter "[e]ven though this could have been determined and classified as something done in the heat of the moment." The judge further emphasized that defendant would have faced up to thirty years in prison with twenty-five years of parole ineligibility if found guilty of aggravated manslaughter.
The judge found and applied the following aggravating factors: "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The judge considered, but rejected, mitigating factors, including that "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3), because the victim had not been in the store. The judge sentenced defendant to a ten-year term of imprisonment with eight-and-one-half years of parole ineligibility and three years of parole supervision upon release. Defendant acknowledged that he had a right to appeal.
Defendant did not appeal. Instead, in November 2007, he filed a pro se PCR petition. In September 2008, assigned PCR counsel filed an amended petition, a certification from defendant, and a brief. Defendant stated that trial counsel induced him to plead guilty because counsel had not properly investigated the case, counseled him not to appeal, and was ineffective because counsel failed to: (1) adequately investigate the 1999 incident and defendant's psychiatric sequelae resulting therefrom; (2) have a psychiatrist or psychologist examine him to determine whether he suffered from diminished capacity on the night of the shooting as a result of the 1999 incident; (3) consider self-defense or passion/provocation manslaughter; (4) inform him of NERA's post-release parole supervision requirement; and (5) argue for the following mitigating factors at sentencing: "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(2); "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3); "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1b(4); and "[t]he victim of the defendant's conduct induced or facilitated its commission," N.J.S.A. 2C:44-1b(5).
In an oral decision, which was subsequently reduced to writing, a different judge found that Rule 3:22-4*fn2 procedurally barred defendant's ineffective assistance of counsel claims because defendant could have raised these claims on direct appeal. Substantively, the judge concluded that defendant's claims lacked merit, and defendant failed to establish a prima facie case of ineffective assistance of counsel or prejudice. The judge found that defendant offered nothing more than self-serving statements as to what a further investigation might have revealed to support a defense, there was no evidence supporting a diminished capacity defense, and defendant failed to establish that but for trial counsel's deficiencies, he would have received a better plea offer. The judge emphasized that the State was aware of the mitigating circumstances of the 1999 incident, the evidence did not support self-defense or passion/provocation manslaughter, defendant faced life ...