June 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAHIRA MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-02-0316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012 -
Before Judges Fuentes and Graves.
Defendant Tahira Muhammad appeals from an order dated March 27, 2009, denying her petition for post-conviction relief (PCR) without prejudice and a subsequent order dated May 19, 2009, denying her request for PCR with prejudice. We affirm.
On July 18, 2003, when she was thirty years old, defendant pled guilty to first-degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3. In return for the guilty plea, the State agreed to dismiss the remaining counts of the indictment and to recommend that defendant be sentenced to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility and five years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During her plea hearing, defendant testified she graduated from college. When questioned by the court, defendant confirmed she understood the plea agreement, she entered into it voluntarily, and her answers to the questions on the plea form were "accurate, truthful and complete." On the plea form, defendant indicated she was satisfied with the advice she received from her attorney. In addition, when the judge asked defendant if her attorney had answered all of her "questions and concerns about [the] charges," defendant answered "Yes." She also confirmed she was "satisfied with the legal services that [her attorney] rendered on her behalf."
In response to questions from her attorney regarding the offense, which occurred on October 12, 2002, defendant testified as follows:
Q. And during that time you were in a vehicle with a girl that you had known by the name of Annie Barrone, is that correct?
Q. And prior to getting into the vehicle you had gone to retrieve an item out of your car, is that correct?
Q. And what was that item?
A. It was a hammer.
Q. And you took that hammer and you concealed it in your clothes?
Q. And at some point in time when you were driving with Ms. Barrone she had pulled off to the side of the road. I believe she thought she was lost.
Q. And you hit her on the head with the hammer?
Q. And you gave a statement to the police, is that correct, and it consisted of about seven pages?
A. I don't remember how many pages it was.
Q. Do you remember giving the statements?
Q. And in that statement you indicate that you hit her approximately four times[?]
Q. And you further indicated that after she had fallen out of the car you hit her with the vehicle as well?
Q. And when doing that you realized that you could have caused her death?
Q. You indicated in [your statement] that there was blood everywhere?
Q. And that your purpose was at that point in time to kill her, is that correct?
Q. And you understand that you're pleading guilty to attempted murder here today?
Q. And you're doing so freely and voluntarily?
Q. And we've discussed this case in detail?
On October 24, 2003, when defendant was sentenced, her attorney emphasized that defendant had "a strong support system" and no prior criminal history except for one municipal court matter. Defendant's attorney also stated defendant was treated for "sever depression" for many years, and she ingested ecstasy and possibly cocaine prior to the offense. However, based on the information provided by defendant's treating doctors, her attorney advised the court "there was not enough there" to establish an insanity or a diminished capacity defense. Thus, defense counsel argued that a ten-year sentence was appropriate based on all of the circumstances.
When defendant addressed the court, she said: "I'm sorry for what I did. I really regret what I did that night and if I had a chance to take it back, I would. I'm sorry, I really am sorry for what I did to the victim." Defendant also stated: "I was just not in my right state of mind at that time."
In response, the State noted defendant never indicated in her statement to the police "that she was acting under the influence of drugs." Additionally, the State argued defendant was motivated by jealousy, and the offense "was premeditated" because defendant took a hammer from "her own car and put [it] in her pocket before the event." The court sentenced defendant in accordance with the plea agreement to a fifteen-year term subject to NERA.
Defendant appealed her sentence, and the matter was placed on an excessive sentence calendar. R. 2:9-11. Following oral argument, this court entered an order on August 23, 2007, affirming defendant's sentence. Defendant's petition for certification was denied on May 16, 2008. State v. Muhammad, 195 N.J. 521 (2008).
Defendant filed a PCR petition on April 7, 2008, alleging, among other things, that her attorney was ineffective for failing to provide her with full and complete discovery; failing to fully and completely explain the terms of the plea agreement; and for failing to present "mitigating information" at her sentencing. In a supplemental certification, after counsel was assigned, defendant stated she was "suffering from depression" at the time of the offense, and she alleged her attorney was ineffective for failing to obtain a psychological evaluation. During oral argument on March 27, 2009, PCR counsel focused on whether defendant had the capacity at the time of the offense "to contemplate intentionally or purposefully what she was doing." He argued there was a lot of emotion and jealousy between the parties, which "could have diminished the actual degree of the crime because [defendant] was provoked."
The PCR court found defendant had entered the plea knowingly and voluntarily. The court also found there was no need for an evidentiary hearing because defendant failed "to meet either prong one or prong two of the Strickland/Fritz test."*fn1
Defendant's petition was initially denied without prejudice, but the State moved for reconsideration of the "without prejudice" portion of the order. On May 19, 2009, the court granted the State's motion, and it denied defendant's petition with prejudice. However, the court noted that if defendant could produce an expert report supporting a diminished capacity defense, she could file a subsequent petition alleging ineffective assistance of PCR counsel.
On appeal from the denial of her PCR petition, defendant submits the following arguments:
THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT DID NOT ENTER INTO THE PLEA KNOWINGLY AND VOLUNTARILY.
THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT. IN THE ALTERNATIVE, BECAUSE DEFENDANT PRESENTED AT LEAST PRIMA FACIE PROOF THAT SHE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING.
A. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INFORM DEFENDANT OF THE TERMS AND PENAL CONSEQUENCES OF THE PLEA.
B. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO CONDUCT ADEQUATE PRETRIAL PREPARATION.
C. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO PROVIDE ALL RELEVANT MITIGATING INFORMATION AT SENTENCING.
D. CUMULATIVE ERRORS BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL.
E. ALTERNATIVELY, THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
THE PETITION SHOULD NOT HAVE BEEN DENIED WITH PREJUDICE.
THE PETITION SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
A. THE PETITION WAS FILED WITHIN THE TIME BAR.
B. THE PETITION SHOULD NOT BE PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons stated by Judge Richard W. English on March 27, 2009, and May 19, 2009. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that defendant does not claim she is innocent. Additionally, as Judge English correctly concluded, defendant failed to establish that her attorney was deficient, and she failed to establish "a reasonable probability that, but for counsel's errors [she] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Affirmed.