July 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY LEONARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 20, 2012
Before Judges A. A. Rodriguez and Reisner.
Defendant, Larry Leonard, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
Defendant entered into an agreement with the State to plead guilty to first-degree carjacking, N.J.S.A. 2C:15-2. In exchange, the State agreed to dismiss the remaining nine*fn1 counts of Indictment No. 03-10-01131 and to recommend a custodial term not to exceed fifteen years with a NERA*fn2 period of parole ineligibility.
At the plea hearing, defendant testified that on July 17, 2003, in Plainfield, "I jumped this car and I tried to take the car." The car was a 1990 Nissan. He admitted being armed with a knife that he used to threaten the woman who was driving the Nissan.
During the plea colloquy, defendant admitted that he faced a potential thirty-year term. Judge William L'E. Wertheimer accepted the plea and imposed a twelve-year term with a NERA parole disqualifier.
Defendant appealed his sentence only. At an excessive sentence oral argument calendar, pursuant to Rule 2:9-11, we affirmed the sentence. State v. Leonard No. A-0185-05 (App. Div. Jan. 11, 2007).
In April 2008, defendant filed pro se the PCR petition. The designated counsel filed a brief in support of the petition. Defendant alleged that he: (a) "was unable to make voluntary, knowing and willing waiver rights"; (b) received ineffective assistance from plea counsel; and (c) "was incompetent to stand trial." In addition, defendant alleged that an "expert in psychiatry should have been engaged because petitioner was on medication at the time of the crime," and the judge abused his discretion in fashioning a sentence.
Judge Wertheimer heard oral argument and issued a written opinion on July 17, 2009, denying the PCR petition. In pertinent part, the judge found:
Outside of defendant's assertion that he did not make the plea knowingly and voluntarily, there is no evidence to support same. In fact, during the plea colloquy, the trial court clearly articulated all the rights defendant was giving up by pleading guilty and defendant indicated he understood. Defendant further stated no one forced him to plead guilty, and that he was not under the influence of drugs or alcohol nor suffering from any physical or mental illnesses when the plea was taken. Therefore, the court is not persuaded by defendant's argument.
Defendant also argues he received ineffective assistance of counsel because his attorney forced him to plead guilty and did not engage an expert psychiatrist, despite defendant's history of mental illness. .
Once again, outside of defendant's bald assertions that his lawyer forced him to accept a plea deal, there is no evidence to support same. Additionally, defendant's counsel lawyer did engage an expert psychiatrist, Dr. Kenneth J. Weiss. Dr. Weiss concluded that defendant was competent to stand trial. See Letter from Dr. Kenneth J. Weiss, M.D., to defense counsel. Therefore, defendant's ineffective assistance of counsel claim also fails.
Defendant appeals, contending:
THE FAILURE OF THE TRIAL COURT TO EXPLAIN TO DEFENDANT THAT IF HE PLEAD GUILTY TO A FIRST DEGREE NERA OFFENSE HE WOULD SERVE FIVE YEARS ON PAROLE AFTER HE SERVED HIS PRISON SENTENCE, CAUSED DEFENDANT'S PLEA TO BE INVOLUNTARY BECAUSE HE LACKED KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE (NOT RAISED BELOW).
A review of the plea colloquy, and the plea form, specifically the Supplemental Plea Form for NERA cases, belies this contention. One of the questions and answers in the supplemental plea form states:
1. Do you understand that because of your plea of guilty to carjacking, you will be required to serve 85% of the sentence imposed for that offense(s) before you will be eligible for parole on that offense(s)?
2. Do you understand that because you have pled guilty to these charges the court must impose a 5-year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration?
The answers checked by defendant to question 1 and 2 are both
Defendant also contends:
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCE HEARING AS A RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT HIS SENTENCE HEARING (PARTIALLY RAISED BELOW).
We are not persuaded.
The standard for assessing an attorney's performance is well-established. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d. 674, 693 (1984). The New Jersey Supreme Court adopted this standard for deciding claims of ineffective assistance arising under the New Jersey Constitution in State v. Fritz, 105 N.J. 42, 51 (1987). The first requirement is that defendant show that counsel's performance was deficient by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
Here, judged against that standard, we conclude that defendant has failed to establish the first requirement. From our careful review of the record, we do not perceive that trial counsel provided ineffective assistance in any way.
Defendant also contends:
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We are not persuaded.
With respect to defendant's claim of entitlement to an evidentiary hearing, we are mindful that when making such a decision, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a [prima facie] claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of- counsel claims if a defendant has presented a [prima facie] claim in support of [PCR]." Id. at 462. However, "[i]f the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to [PCR], . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). We conclude that such is the case here. Other than unsupported assertions and conjecture, no contested issues of material fact outside of the record are presented.
The last contention is that:
DEFENDANT'S PETITION FOR [PCR] SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC [DEFENDER] TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
Because we conclude that defendant has not succeeded in establishing that the denial of his petition was an error, this issue is moot.