August 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HOWARD REED, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges J. N. Harris and Fasciale.
Defendant Howard Reed appeals from an order dated February 2, 2010, denying his petition for post-conviction relief (PCR). We affirm.
In late 2001, after a waiver of the Family Part's jurisdiction and a referral to the Law Division pursuant to N.J.S.A. 2A:4A-26, defendant was charged in separate indictments with several crimes committed over a two-day span in July 2001 when he was seventeen years old. The first indictment (No. 01-12-2455) contained fifteen counts charging defendant and a co-defendant with several first-degree crimes, including murder, attempted murder, felony murder, and robbery. The second indictment (No. 01-10-1963) charged defendant alone with first-degree attempted murder, robbery, aggravated assault, and two weapons offenses.
In April and May 2002, at defense counsel's request, defendant underwent a psychological examination to ascertain whether defendant was competent to stand trial. The psychologist noted that defendant was illiterate and provided a provisional diagnosis, which indicated that defendant was suffering from major depression with psychotic features, and questioned his competency to stand trial. "[A] neurological evaluation and CT scan of the brain and/or other neurological testing deemed necessary by a neurologist" was recommended.
In July and October 2002, defendant was examined by the State's psychological expert. The State's psychologist opined that defendant was competent to stand trial but suffered from "malingering memory impairment."
In March 2004, without a formal competency review, defendant entered guilty pleas pursuant to a negotiated agreement, resulting in his conviction for first-degree robbery (No. 01-12-2455), N.J.S.A. 2C:15-1, and first-degree attempted murder (No. 01-10-1963), N.J.S.A. 2C:5-1 and 2C:11-3(a)(1). The plea arrangement called for a maximum sentence of twenty-two years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, if the court ran the sentences consecutively. All other counts of the indictments were dismissed. On May 14, 2004, the Law Division sentenced defendant to the maximum imprisonment in accordance with the plea arrangement.
Defendant appealed the judgments of conviction pursuant to Rule 2:9-11, and we affirmed in an unpublished order. State v. Reed, No. A-000424-04 (App. Div. Jan. 11, 2006). The Supreme Court denied further review. State v. Reed, 186 N.J. 607 (2006).
In his August 2009 PCR petition, defendant alleged that his 2004 plea was not "knowing and voluntary," largely because he was unable to understand the terms concurrent and consecutive. He claimed that his ability to enter into a plea arrangement was compromised because he was "developmentally challenged mentally and borderline competent to stand trial." The petition did not directly challenge the effectiveness of defense counsel, but focused on the failure of the court to conduct a competency hearing or more fully address defendant during the plea and allocution procedure. Finally, the petition sought only "to amend [defendant's] sentence . . . to a concurrent sentence."
Following a non-evidentiary hearing on February 2, 2010, the PCR court denied defendant's petition. It held that the arguments concerning defendant's purported inability to understand the nature of the plea arrangement's potential consecutive sentencing were "totally without merit in light of the fact that they were discussed at least three times in open court." After an order was entered denying the petition, this appeal followed.
On appeal, defendant presents the following points for our consideration:
POINT I: THE PLEA HEARING WAS DEFICIENT UNDER R[ULE] 3:9-2 BECAUSE THE TRIAL COURT FAILED TO ASCERTAIN THAT THE DEFENDANT'S PLEA WAS KNOWING AND VOLUNTARY, AND FAILED TO PROPERLY INFORM THE DEFENDANT ABOUT THE FINAL CONSEQUENCES OF THE PLEA. (Not raised below)
POINT II: THE ISSUE OF THE DEFENDANT'S MENTAL COMPETENCY WAS NOT CONCLUSIVELY RESOLVED AND, THEREFORE, THE DEFENDANT'S GUILTY PLEA WAS NEITHER KNOWING NOR VOLUNTARY, AND ENTERED IN VIOLATION OF HIS RIGHT TO DUE PROCESS.
POINT III: DEFENDANT'S PLEA COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PROCEED WITH THE COMPETENCY HEARING PRIOR TO THE ENTRY OF THE GUILTY PLEA. (Not raised below)
POINT IV: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DETERMINED THE DEFENDANT TO BE COMPETENT BASED ON DR. JOSEPH'S REPORT AND FAILED TO ORDER A COMPETENCY HEARING, SUA SPONTE, BEFORE ACCEPTING THE DEFENDANT'S PLEA. (Not raised below)
POINT V: ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.
Based upon our review of the record and the applicable law, we conclude that these arguments do not warrant an extended discussion. R. 2:11-3(e)(2). We add only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz test.*fn1 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Secondly, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Here, there is no evidence that plea counsel failed to represent defendant properly. The plea allocution proceeding took place more than a year after the competency reports were rendered. There is nothing in the record to suggest that the judge needed to exercise greater scrutiny at the time he accepted the plea. Under these circumstances, defendant was not entitled to an evidentiary hearing because he did not present sufficient evidence to establish a prima facie claim that his plea attorney was ineffective. Preciose, supra, 129 N.J. at 462-63.
In his first and fourth points, defendant argues for the first time that the plea hearing was deficient and that the Law Division committed plain error when it failed to conduct a competency hearing in 2004. These points should have been raised on a direct appeal. Appellate courts do not ordinarily consider issues that were never presented to the PCR court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).