On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012
Before Judges Carchman and Fisher.
As part of a negotiated plea agreement, defendant Justin B. Cannarella pled guilty to third-degree terroristic threats, N.J.S.A. 2C:12-3a, and was sentenced in accordance with the plea agreement to a term of probation. In addition to abiding by the rules and regulations of probation, defendant was ordered to take his prescribed medication and attend counseling as a condition of probation. He was also ordered to be placed in a residential program.
In November 2005, before his placement in a residential facility, defendant entered a guilty plea to third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Defendant was sentenced to the same probationary term as well as the same conditions of probation and residential placement previously ordered.
Defendant was thereafter charged with a violation of probation, but because no residential placement had been secured, the matter was adjourned for thirty days. At the expiration of that time period, no placement had been secured. Therefore, defendant's previous probationary sentence was revoked, and he was sentenced to a prison term of five years. Defendant did not appeal but instead filed a petition for post- conviction relief (PCR). The trial judge denied relief. Defendant appeals, and we now affirm.
In his PCR, defendant asserted that his counsel failed to "file and pursue a diminished capacity defense." On appeal, defendant raises the following issues:
THE DEFENDANT'S PCR ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, ALTHOUGH RELYING ON THE ARGUMENT THAT THE DEFENDANT WAS MENTALLY UNABLE TO FORM THE INTENT TO COMMIT A PROBATION VIOLATION, HE FAILED TO INTRODUCE INTO EVIDENCE THE REPORT OBTAINED WITH RESPECT TO THE DEFENDANT'S MENTAL HEALTH.
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE FAILED TO BE ADEQUATELY PREPARED TO PROFFER ANY PRETRIAL EVIDENCE THAT THE DEFENDANT'S MENTAL CONDITION WAS SUCH THAT HIS CONDUCT SHOULD HAVE BEEN EXCUSED.
WHERE THE TRIAL COURT DOES NOT ADDRESS THE DEFENDANT PERSONALLY, THE GUILTY PLEA ENTERED TO A PROBATION VIOLATION SHOULD BE VACATED.
During his plea colloquy with the judge when he entered his plea of guilty to the aggravated assault, defendant responded to the judge's questions as follows:
Q: And I am given to understand that there is a physical, mental or emotional condition that you suffer from but that doesn't affect your ability to understand what I'm saying today, does it?
Q: Do you know if you have a formal diagnosis with any mental condition?
Q: What is that condition?
A: I got approximately five diagnoses.
A: Which is bipolar, ADHD, ADD, compulsive and impulsive ...