February 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIE DAVIS, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Baxter and Nugent.
Defendant Willie Davis appeals from an August 25, 2010 Law Division order denying his first petition for post-conviction relief (PCR). The PCR judge rejected defendant's claim that trial counsel rendered ineffective assistance by failing to review with defendant all possible defenses before defendant entered guilty pleas to two counts of murder. We affirm.
On December 8, 2001, following an argument with his girlfriend, defendant murdered their two children, a twenty-three month old daughter and a five-month old son, by slitting their throats with a box cutter. On April 15, 2003, defendant entered pleas of guilty to a two-count accusation charging him with those murders. Defendant was not sentenced until March 3, 2005, nearly two years later. The sentencing delay resulted from the judge's and the parties' desire to make certain, prior to sentencing, that defendant was competent to enter the pleas of guilty and that he understood the possible defenses he relinquished by doing so. To that end, on November 18, 2003, defendant executed an addendum to the plea form. In the addendum, defendant answered "yes" to each of the following questions:
Do you understand what the defense of insanity is and do you understand that you have the right to assert this and any other defense allowed to you by law?
Do you understand that, based on evidence provided to you since the entry of your plea, you could attempt to assert the defense of insanity?
Are you giving up your right to assert the defense of insanity or any other defense allowed to you by law?
Do you wish the court to sentence you for the crimes [to] which you pled guilty on April 15, 2003?
Additionally, defense counsel retained an expert, Guillermo Parra, Ph.D.; and the judge appointed an independent expert, Peter D. Paul, Ph.D. Both experts opined that defendant was competent to waive his right to trial, to waive the insanity defense and to enter pleas of guilty.
Prior to sentencing, defendant moved to withdraw his guilty plea, based on his assertion that he had suddenly recalled in a dream that an unknown intruder broke into his house and killed his two children. On February 9, 2005, Judge Callahan denied defendant's motion, reasoning that defendant had presented nothing other than a "whimsical change of mind," which was an insufficient basis upon which to retract a plea of guilty.
After receiving the report of Drs. Parra and Paul, and after considering the November 18, 2003 addendum, the judge sentenced defendant on March 3, 2005 to two consecutive thirty-year terms of imprisonment, each subject to a thirty-year parole ineligibility term.
On direct appeal, we rejected defendant's claims that the judge erred by denying defendant's motion to retract his guilty plea, and that the judge had imposed an excessive sentence by requiring that the two thirty-year terms of imprisonment be served consecutively. State v. Davis, No. A-4643-04 (App. Div. October 15, 2008) (slip op. at 14-15, 23). We deferred to the PCR stage defendant's claim of ineffective assistance of counsel. Id. at 13. The Supreme Court denied certification. State v. Davis, 199 N.J. 543 (2009).
On September 10, 2009, defendant filed the PCR petition that is the subject of this appeal, asserting that trial counsel rendered ineffective assistance by "fail[ing] to obtain discovery, fail[ing] to investigate, fail[ing] to provide [defendant] with objective analysis, pressur[ing] [defendant] to plea[d] guilty, refus[ing] to file [a necessary] motion and fail[ing] to raise mitigating factors [at sentencing]." In a written decision rendered on August 25, 2010, Judge Callahan denied defendant's PCR petition without an evidentiary hearing.
The judge pointed to the report furnished by the independent, court-appointed psychologist, Dr. Paul, who opined that defendant was "malingering" when he claimed to be unable to understand the consequences of having pled guilty and waiving the insanity defense. Judge Callahan also relied on Dr. Paul's conclusion that despite defendant's claims to the contrary, defendant was "competent to waive his right to trial and enter his [guilty] pleas." Based upon the November 18, 2003 addendum to defendant's plea form, and Dr. Parra's and Dr. Paul's opinions that defendant was competent to proceed, Judge Callahan determined that trial counsel did not render ineffective assistance of counsel when he recommended that defendant waive the insanity defense and enter pleas of guilty.
Judge Callahan also rejected as meritless defendant's remaining claims of ineffective assistance of counsel, including defendant's claims that trial counsel failed to provide him with pretrial discovery, failed to conduct an adequate investigation, pressured him to plead guilty and failed to present mitigating factors at sentencing; however, because defendant has not raised these issues on appeal, we need not discuss them further.
The judge signed a confirming order on August 25, 2010 denying defendant's PCR petition.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The prevailing legal principles regarding claims of ineffective assistance of counsel arising out of the entry of guilty pleas, evidentiary hearings and petitions for post conviction relief.
B. Since the defendant presented a prima facie case of ineffective assistance of trial counsel, the trial court erred in denying his petition for post conviction relief without affording him an evidentiary hearing to fully address his contention.
To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The Strickland/Fritz test applies to ineffective assistance of counsel claims arising in the context of guilty pleas. State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). In that context, while the first prong of the Strickland test remains exactly the same, to meet the second prong, a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
An attorney is obligated to conduct a thorough investigation of the defendant's case, and must explore all possible defenses. State v. Martini, 160 N.J. 248, 266 (1999). A defendant cannot be said to have voluntarily pled guilty if his plea resulted from ineffective legal representation. State v. Rhein, 117 N.J. Super. 112, 118 (App. Div. 1971).
On appeal, defendant contends that his history of
"significant mental illness," and the impact of that mental illness upon defendant's conduct on the day he murdered his children, was not thoroughly investigated by trial counsel before he "permitted [defendant] to plead guilty." Defendant argues:
While Dr. Guillermo Parra . . . interviewed the defendant on April 13, 2003, trial counsel nevertheless permitted [defendant] to plead guilty two days later. As such, trial counsel did not have the benefit of any report which was subsequently issued by Dr. Parra, and further could not possibly have reviewed any subsequent findings regarding . . . defendant's mental infirmities with him in determining whether or not he should enter into a plea agreement. . . .
Accordingly, trial counsel was clearly remiss by counseling his client to enter into a plea agreement without obtaining the report which would eventually be issued by Dr. Parra regarding [defendant's] mental infirmities and its potential relevance to [defendant's] criminal culpability. [Trial counsel] was further remiss by, once having received the report, failing to review it with [defendant] so that [defendant] could make an informed decision between entering into a plea agreement or proceeding to trial based upon potential defenses which could either completely or partially exonerate him.
[T]here was no indication whatsoever in [Dr. Parra's] report or at any other place in the trial record demonstrating [that] defendant had thoroughly reviewed any and all potential defenses with trial counsel.
Accordingly, the defendant could very well have concluded, after being properly advised of all relevant evaluations rendered by the various experts, that he desired to proceed to trial rather than enter into a plea agreement. Simply put, that decision was for the defendant himself to make, and he could only make such an informed decision if he had the opportunity to thoroughly discuss with his attorney all such information. Having not had the opportunity to do so, it cannot be said that his guilty plea was freely and voluntarily entered.
The record amply supports Judge Callahan's conclusion that two psychologists, Dr. Parra and Dr. Paul, both concluded that defendant was competent to waive the defense of insanity or diminished capacity. As for defendant's contention that trial counsel never reviewed with him the possible defenses to the charges before he pled guilty, the record suggests that trial counsel's discussion of those defenses with defendant may not have been as thorough before defendant entered his guilty plea as it is was in the interval between the plea and sentencing. Notably, Dr. Parra's December 9, 2003 report makes reference to his earlier report of July 5, 2003, in which Dr. Parra opined that defendant was suffering from a "catathymic crisis" at the time he murdered his two children.*fn1 Dr. Parra further opined in his July 2003 report that defendant had an "incipient schizophrenic disorder" that may have precipitated the catathymic crisis. Because Dr. Parra's first report was not issued until July 5, 2003, it stands to reason that defense counsel could not have reviewed that report with defendant prior to the time defendant entered his guilty pleas on April 15, 2003.
We have no quarrel with defendant's contention that trial counsel was obliged to have discussed the insanity defense with him before he pled guilty. We are satisfied, however, that any deficiencies that may have existed in trial counsel's discussion with defendant before defendant entered his guilty plea were fully rectified before sentencing. Defendant expressly assured the judge in his November 18, 2003 addendum to the plea form: that he understood the defense of insanity; that based on evidence presented to him subsequent to the entry of his guilty pleas he recognized that such a defense could be asserted; but that he was voluntarily giving up his right to assert the defense of insanity and was requesting that the trial court "sentence [him] for the crimes [he] pled guilty [to] on April 15, 2003."
By executing the November 18, 2003 addendum to the plea form, defendant expressed his understanding of the possible defenses and his willingness to waive those defenses, and urged the court to proceed with sentencing. Although the discussion of those defenses should have occurred earlier, we are satisfied that counsel engaged in a meaningful discussion of the insanity defense with defendant before defendant was sentenced and convicted. Any deficiencies in trial counsel's performance prior to the plea were addressed and resolved before sentencing. In the end, defendant received the benefit of the thorough discussion that should precede the entry of a guilty plea. Although that discussion was belated, such delay had no ultimate impact on defendant's right to the effective assistance of counsel, as those discussions were completed before sentence was ultimately imposed, thereby satisfying the requirement that a conviction that results from a plea be the result of an informed decision by a defendant. See Rhein, supra, 117 N.J. Super. at 118. Moreover, because defendant did not establish a prima facie case of ineffective assistance of counsel, the judge did not err by refusing to afford defendant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).