February 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS A. POSADA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 00-10-1300.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Grall and Alvarez.
Defendant Carlos A. Posada appeals from the denial of his petition for post-conviction relief. We affirm.
Pursuant to an agreement with the State, defendant pled guilty to possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-4, and aggravated manslaughter, N.J.S.A. 2C:11-4a(1), a crime of the first degree subject to a term of imprisonment between ten and thirty years, N.J.S.A. 2C:11-4c, and to terms of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In return, the State agreed to seek amendment of the count of the indictment charging defendant with murder and dismissal of the counts charging defendant with unlawful possession of a weapon, N.J.S.A. 2C:39-5d, and violation of a restraining order, N.J.S.A. 2C:29-9. Defendant entered his guilty plea on August 14, 2001.
On November 7, 2001, the judge merged defendant's convictions and sentenced him to a thirty-year term of imprisonment, with the periods of parole ineligibility and supervision required by NERA. We affirmed his sentence on an appeal argued in accordance with Rule 2:9-11, and the Supreme Court denied defendant's petition for certification. State v. Posada, 183 N.J. 214 (2005). Subsequently, on defendant's motion for reconsideration, the Supreme Court remanded for resentencing in conformity with State v. Natale, 184 N.J. 458 (2005). State v. Posada, 185 N.J. 384 (2005).
On February 24, 2006, defendant was sentenced to the same sentence on remand. On April 29, 2008, we affirmed that sentence on an appeal heard pursuant to Rule 2:9-11. The Supreme Court again denied certification. State v. Posada, 196 N.J. 462 (2008).
Defendant filed this petition for post-conviction relief with the trial court on May 18, 2006, which was after his resentencing and before resolution of his appeal from that determination. The petition, through which defendant sought to vacate his guilty plea and also relief on a claim of ineffective assistance of counsel, was timely filed. R. 3:22-12. On October 2, 2006, the trial court entered an order permitting defendant to pursue the claims after his appeal was final.
Defendant renewed his applications following denial of his last petition for certification. After hearing argument, the judge denied defendant's requests for relief for reasons stated in a comprehensive oral decision delivered on April 5, 2010. This appeal followed.
Defendant's wife was the victim of the homicide. He killed her on February 11, 2000. At the time, they were separated, and his wife had obtained a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. According to the factual basis defendant provided at the time of his guilty plea, he went to his wife's home to commit suicide. After he arrived, an altercation ensued, and he stabbed his wife with his knife multiple times in the chest and then stabbed himself.
Following his arrest, defendant was depressed and was given prescription medication. According to his medical records submitted, he took several medications between February 28 and October 21, 2000. Prior to entry of defendant's guilty plea, his attorney obtained a forensic evaluation of defendant from Dr. Juan L. Riestra, M.D. His report was issued in June 2001. In Dr. Riestra's opinion, within a reasonable degree of medical certainty, defendant had the capacity to understand the juridical proceedings and assist in his own defense. Dr. Riestra was also of the opinion that defendant's capacity to appreciate the wrongfulness of his conduct and conform his conduct to the requirement of the law was "significantly impaired" at the time of the crime.
Defendant entered his guilty plea on August 14, 2001. An interpreter was provided, and the consequences of the plea, including the waiver of trial rights, the significance of NERA and defendant's "likely" deportation upon completion of his sentence, were explained. Defendant acknowledged his understanding and his satisfaction with the services his attorney had rendered, and he denied that his plea was induced by force, threat or undisclosed promise. Concluding that the factual basis was adequate and that defendant understood the consequences and was not influenced by threats or promises, the judge accepted defendant's plea as voluntarily made.
During the sentencing proceeding, defendant's attorney argued that the court should consider defendant's depression at the time of the homicide, his otherwise law abiding and hard working life, his remorse and the impact of his incarceration on his child. To support the argument on defendant's mental state, the attorney submitted Dr. Riestra's report. Defendant also addressed the judge. He expressed remorse, acknowledged his responsibility for depriving his son of his mother and of his care during his incarceration, and stated that he, defendant, "[would] live with a broken heart" for the rest of his life.
In imposing sentence, the judge recognized defendant's status as a first offender, his depression, his suicidal tendencies and his attempt to take his own life on the day of the homicide. Addressing defendant's argument for mitigation based on his mental state, the judge explained, your "depression" and "suicidal tendencies" "pale in comparison to your acts of domestic violence."
As noted above, defendant's request for post-conviction relief had two grounds. First, he sought to vacate his guilty plea as involuntary and uninformed. Second, he claimed ineffective assistance of counsel, which he based on his lawyer's failures to investigate his mental state or consider the possibility of a conviction for provocation manslaughter; failure to explain the significance of NERA and deportation; failure to consider his state of mind at the time of the plea; and on her delivery of advice instilling false hope that the judge would impose a sentence of fewer than thirty years. Defendant's PCR counsel touched on all of these issues at the hearing on defendant's petition.
Before stating his findings and conclusions, the judge who heard defendant's petition reviewed the transcripts of the plea and sentencing proceedings and the documentary evidence submitted at those proceedings and on the petition. The materials the judge considered included logs showing the dates of plea counsel's meetings with her client between his arrest and plea.
The judge found no evidence substantiating defendant's claim that he was taking medication at the time of his plea or that the prescribed medication he had been taking would affect defendant's ability to understand the proceedings and enter a knowing and voluntarily plea. He further found that defendant had been adequately apprised of the consequences of his plea, including the NERA component of his sentence and a deportation that would likely occur upon expiration of his sentence. The court rejected defendant's claim that his lawyer pressured him to accept the plea because it was contradicted by the record of the plea proceeding. Thus, in addressing defendant's request to vacate the plea, the judge properly commenced his analysis by considering whether the judge accepting the plea "followed the dictates of Rule 3:9--2." State v. Slater, 198 N.J. 145, 155 (2009).
The judge went further and considered the factors that must be applied to evaluate a request to withdraw a plea: "1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 150. The judge concluded that defendant had no colorable claim of innocence and his reasons for withdrawal - lack of competence to enter a plea and lack of information about the consequences - were not supported by the record. Because defendant first moved to vacate his plea after sentencing, the judge could vacate the plea only upon a showing of manifest injustice. Id. at 156.
The judge concluded that defendant had not established a prima facie case of defective performance by his attorney warranting relief from his conviction or sentence. See State v. Jack, 144 N.J. 240, 249 (1996) (noting defendant's obligation to show deficient performance and resulting prejudice). He rejected defendant's complaints about his attorney's pressuring him to accept the plea, her failure to give proper advice and her failure to properly investigate his mental state, possible defenses and mitigating factors. In doing so, the judge relied on the lawyer's several visits with defendant prior to his plea and on the evidence and numerous arguments his attorney presented in support of a lower sentence. In the judge's view, the lawyer's argument at sentencing indicated that she had investigated defendant's mental state and considered provocation. He further noted the sentencing judge's rejection of these arguments was not indicative of substandard performance. Finally, the judge relied on defendant's expression of satisfaction with his lawyer's services and advice, which defendant had voiced when he pled guilty and when he was sentenced.
On appeal defense counsel presents these issues for our consideration:
I. THE FAILURE OF TRIAL COUNSEL TO FULLY INVESTIGATE PETITIONER'S STATE OF MIND AT THE TIME OF THE INCIDENT, THE FAILURE TO PRESENT EVIDENCE ESTABLISHING PETITIONER'S ABILITY TO ENTER A VALID PLEA OF GUILTY DESPITE THE AMOUNT OF MEDICATIONS HE WAS TAKING AT THAT TIME, AND THE FAILURE TO FULLY AND TRUTHFULLY TELL PETITIONER THE TERMS OF THE PLEA BARGAIN RESULTED IN A COERCED PLEA OF GUILTY. AS SUCH, A HEARING IS REQUIRED TO DETERMINE WHY COUNSEL DID NOT INVESTIGATE POSSIBLE DEFENSES AND WHY PETITIONER ASSERTS THAT HE WAS TOLD THAT HE WOULD BE SENTENCED TO A LESSER SENTENCE DUE TO HIS EXTREME MENTAL ILLNESS, AS WHAT APPEARS IN THE RECORD IS A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE TRIAL COURT ERRED IN DENYING PETITIONER'S MOTION TO WITHDRAW HIS [PLEA] OF GUILTY.
In a supplemental brief submitted by defendant, he argues:
I. ASSIGNED COUNSEL FAILED TO PRESENT OR ADDRESS ALL OF THE GROUNDS FOR RELIEF INSISTED UPON BY DEFENDANT AS REQUIRED BY STATE V. RUE, AND, AS A RESULT, DEFENDANT DID NOT RECEIVE A FULL AND FAIR HEARING ON HIS MOTION FOR POST-CONVICTION RELIEF.
II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN CONTRAVENTION OF HIS RIGHTS GUARANTEED UNDER, BOTH, THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION.
III. DEFENDANT'S GUILTY PLEA WAS NOT KNOWINGLY OR VOLUNTARILY ENTERED, THE PLEA HEARING DID NOT ABIDE BY THE REQUIREMENTS OF RULE 3:9-2, THERE WAS NOT A SUFFICIENT FACTUAL BASIS, THE PLEA WAS OBTAINED IN VIOLATION OF DUE PROCESS AND THEREFORE INVALID, HIS MOTION FOR POST-CONVICTION RELIEF, AND TO RETRACT HIS PLEA SHOULD HAVE BEEN GRANTED.
IV. DEFENDANT'S SENTENCE WAS IMPOSED IN VIOLATION OF CONSTITUTIONAL PRINCIPLES ANNOUNCED BY THE UNITED STATES SUPREME COURT IN APPRENDI, AND IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.
Based on our consideration of the foregoing issues in light of the record, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Ironson in his oral opinion of April 5, 2010. To address the point raised for the first time on appeal, it suffices to add that an objective review of the record does not support defendant's new allegation of a failure on the part of PCR counsel to advance his points as required by State v. Rue, 175 N.J. 1 (2002), and State v. Webster, 187 N.J. 254 (2005).
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