June 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE SPOTWOOD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1373.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012 -
Before Judges Messano and Yannotti.
Defendant Andre Spotwood appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The record reveals that on August 16, 2006, defendant pled guilty to three counts of Union County Indictment No. 05-12-1373, charging him with second- and third-degree aggravated assault of his wife, N.J.S.A. 2C:12-1(b)(1) and (b)(2); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). In return, the State agreed to dismiss count one of the indictment charging defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, and recommend a sentence of seven years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Months earlier, defendant's wife had served the prosecutor, the public defender and the criminal presiding judge with an affidavit in which she expressed her desire to "drop any and all charges against [her] husband."
Defendant was sentenced in accordance with the plea agreement on November 17, 2006. He never filed a direct appeal. On September 11, 2007, defendant filed a pro se PCR petition alleging ineffective assistance of counsel, specifically that his "attorney did nothing to help [him]," "did no investigation" and "coerced [him] into taking a plea." PCR counsel was assigned and filed a brief in support of defendant's claim that trial counsel provided ineffective assistance.
Specifically, PCR counsel argued that trial counsel should have pursued an intoxication or diminished capacity defense, and that defendant's guilty plea was "not knowingly, voluntarily or intelligently entered." Additionally, PCR counsel argued that trial counsel was ineffective for failing to file a motion to dismiss the indictment.
A hearing on the petition was held on March 12, 2010, before now-retired Judge Joseph P. Perfilio, who was not the trial judge. PCR counsel essentially referenced his brief and relied upon the arguments made therein.
Judge Perfilio observed that no evidence was submitted regarding the level of defendant's intoxication at the time of the offense, and no medical reports were supplied regarding "diminished capacity." The judge then reviewed the plea form defendant executed at the time of his guilty plea and the transcript of the proceedings. After considering the factors set forth in State v. Slater, 198 N.J. 145, 158-62 (2009), Judge Perfilio concluded that "defendant's plea was entered into knowingly, intelligently, and voluntarily." The judge denied the petition without an evidentiary hearing, and this appeal followed.
Before us, defendant raises the following points:
THE COURT MISAPPLIED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTION TO THE TRIAL COURT THAT PCR COUNSEL BE ORDERED TO FULFILL HIS OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL; BY BRIEFING, ARGUING, AND CONDUCTING AN EVIDENTIARY HEARING ON THIS ISSUE OF TRIAL COUNSEL'S COERCION We have considered these arguments in light of the record and applicable legal standards.*fn1 We find them to be of insufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Perfilio in his oral opinion. We add only the following comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Ibid. A defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Id. at 58.
It remains within the court's discretion whether an evidentiary hearing on the petition is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). A defendant is not entitled to an evidentiary hearing so he can establish a prima facie case. See, e.g., State v. Bringhurst, 401 N.J. Super. 421, 436 (App. Div. 2008).
As to claims of ineffective assistance of PCR counsel, the Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. [State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet [these] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).
Defendant argues that there was sufficient evidence he was intoxicated when he committed the offense because he said so during his plea allocution. However, there was no evidence, nor indeed any claim, that defendant's intoxication resulted in a "prostration of [his] faculties," thereby negating an element of the crimes. State v. Cameron, 104 N.J. 42, 54 (1986).
Defendant also contends PCR counsel was ineffective because he failed to argue that defendant's guilty plea was "coerced." However, the brief filed by PCR counsel specifically addressed that point, and, more importantly, the plea form executed by defendant and the transcript of the guilty plea belie any claim that trial counsel forced him to plead guilty. Judge Perfilio's conclusion in this regard is amply supported by the record.