May 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANGEL LUIS ROBLES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1427.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Harris.
Defendant Angel Luis Robles appeals from an August 19, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was arrested after three girls told the police that he exposed himself and masturbated in front of them, while he was standing in the window of a nearby building. The girls identified defendant shortly after he was arrested. He confessed to the police that he exposed himself, but claimed he only intended to "flash" buses as they passed by, as a prank. A jury convicted defendant of second-degree sexual assault, N.J.S.A. 2C:14-2b, and several related offenses. After merger, he was sentenced to seven years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served in the Adult Diagnostic and Treatment Center (ADTC) located in Avenel, New Jersey.
On his direct appeal, defendant raised the following issues:
POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO CROSS-EXAMINE THE DEFENDANT-APPELLANT ON HIS PRIOR CONVICTIONS AND WITHOUT FIRST HOLDING A HEARING PURSUANT TO N.J.R.E. 104(B).
POINT II: THE COURT ERRED IN GIVING THE JURY AN INSTRUCTION RELATING TO [N.J.R.E.] 404(B) EVIDENCE SINCE THE PRIOR CONVICTION WAS OFFERED AS IMPEACHMENT EVIDENCE AND NO PRIOR HEARING WAS HELD AS TO THE ADMISSIBILITY OF THE EVIDENCE FOR PURPOSES OF NEGATING ANY ALLEGED MISTAKE ON THE DEFENDANT'S PART.
POINT III: THE JUDGE ERRED BY DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON HIS INCOMPETENCE TO STAND TRIAL WITHOUT FIRST CONDUCTING AN INQUIRY INTO THE ALLEGATIONS IN ACCORDANCE WITH N.J.S.A. 2C:4-5B.
POINT IV: DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A COMPETENCY EVALUATION PRIOR TO THE START OF TRIAL.
We declined to address defendant's claim of ineffective assistance of counsel without prejudice to his right to raise the issue in a PCR petition. We rejected his remaining arguments and affirmed his conviction. State v. Robles, No. A-0170-07 (App. Div. June 12, 2009). In particular, we found no evidence in the trial record to support defendant's contention that he was incompetent to stand trial.
On September 18, 2009, defendant filed a PCR petition. He contended that his trial counsel did not adequately discuss the case with him or prepare him to testify at his trial, thereby effectively denying him a meaningful right to testify in his own defense. He also contended that his trial attorney failed to have him evaluated by a psychiatrist prior to trial, in order to present a "diminished capacity" defense or an argument that he was incompetent to stand trial. He further argued that his attorney should have moved for a mistrial. On July 9, 2010, defendant's PCR counsel requested an extension of time to file his PCR brief in order to have an opportunity to have defendant evaluated by a psychiatrist. The request was denied.
At the PCR argument on August 5, 2010, defendant's PCR counsel represented to the court that he had just received permission from the Office of the Public Defender to retain a psychiatrist to examine defendant. The State argued that on direct appeal, defendant raised the issue of competency to stand trial, and the Appellate Division considered and rejected that claim on the merits. The State contended that defendant was barred from re-raising the issue. The State also argued that the ADTC report, which resulted in defendant being sentenced as a repetitive and compulsive sex offender, clearly showed that defendant was not suffering from diminished mental capacity or a psychotic thought disorder.
The ADTC report was based on evaluations performed on April 12, 2007 and June 13, 2007, not long after defendant's trial. The examining psychologist, Dr. Mark Frank, recited that when defendant committed this offense, he was already "on probation for an incident in which an eight-year-old-girl observed him to be rubbing his penis. He was convicted of exposing himself to two adults in 1998 and was charged with several other acts of exhibitionistic behavior that were subsequently dismissed." Dr. Frank found that defendant was a repetitive and compulsive sex offender, but opined that defendant showed no evidence of a "psychotic thought disorder."
In a written opinion dated August 19, 2010, the PCR judge, who had also presided over defendant's trial, denied the petition. First, the judge rejected defendant's claim that his trial counsel failed to "prepare adequately for trial." The judge found that defendant failed to support that claim with any specific information. See State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (holding that "in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). The judge also found those assertions were not supported by the trial record, which showed that defendant was well aware of the evidence against him. He found that defendant failed to explain how counsel's alleged shortcomings could have prejudiced the defense. He noted that defendant was clearly advised on the record concerning the pitfalls of testifying. The judge found no basis for a mistrial motion, and therefore no ineffectiveness in trial counsel's failure to make such a motion.
Finally, the judge reasoned that he had already determined that defendant was competent to stand trial, and the Appellate Division affirmed that determination based on the trial record. Therefore, defendant was barred from attempting to re-litigate the issue in a PCR petition. See R. 3:22-5. The judge further concluded that defendant presented no explanation as to how he could have presented a diminished capacity defense. The judge noted that even if defendant had bipolar disorder, such a disease would be "irrelevant for a diminished capacity defense unless it affects his ability to have formed the mental state required." The judge likewise found no evidence that defendant was denied the right to testify at his trial.
On this appeal, defendant raises the same arguments he presented to the PCR court. He also asserts that the court should have granted his counsel's request for an adjournment, to have defendant evaluated by a psychiatrist. He presents the following points for our consideration:
POINT I: THE PCR COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A.FAILURE TO REQUEST A MISTRIAL.
B. FAILURE TO REQUEST AN EXPERT EVALUATION ON ISSUE OF MENTAL COMPETENCE.
POINT II: TRIAL COUNSEL DID NOT PROPERLY PREPARE FOR TRIAL AND THEREFORE MR. ROBLES WAS EFFECTIVELY DENIED HIS RIGHT TO TESTIFY IN HIS DEFENSE.
POINT III: THE CUMULATIVE EFFECT OF THE ERRORS BY TRIAL COUNSEL RENDERED THE TRIAL UNFAIR TO MR. ROBLES.
POINT IV: THE COURT ERRED IN DENYING PCR ATTORNEY'S REQUEST FOR A NINETY-DAY ADJOURNMENT TO OBTAIN AN EXPERT TO EVALUATE MR. ROBLES' MENTAL CAPACITY.
We find no merit in any of these contentions. Except as discussed below, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We agree with the PCR judge that defendant did not demonstrate that his trial counsel rendered ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Moreover, because defendant did not present a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 463-64 (1992).
Defendant contends that his trial counsel should have requested a mistrial after defendant stood up and raised his hand during the testimony of one of the victims, who had been asked if she could identify him. We agree with the PCR judge that a mistrial was not warranted. At his trial, defendant freely admitted that he exposed himself. His defense was that he did not realize the girls were present. There was no prejudice to the defense in his identifying himself as the person the witness saw in the window. That was entirely consistent with his trial strategy.
There was no evidence in the trial record that defendant was incompetent to stand trial. See N.J.S.A. 2C:4-4. We rejected that claim on defendant's direct appeal. Further, the ADTC evaluator, whose report is part of the PCR record, found no evidence that defendant was delusional or psychotic. Instead, consistent with defendant's prior criminal history of exposing himself to strangers, the evaluator found that defendant was a compulsive sex offender. At his sentencing, defendant admitted that he needed sex offender therapy and agreed that he should serve his sentence at the ADTC facility.
We find no abuse of the trial court's discretion in denying defendant's untimely request for an adjournment of the PCR hearing to obtain a psychiatric evaluation. Ordinarily, a judge hearing a PCR matter should err on the side of granting an adjournment, if a defendant demonstrates a reasonable basis to believe that he may thus be able to obtain evidence needed to present a prima facie case of ineffective assistance. However, nothing in this record, including the defendant's August 5, 2010 certification, suggests that a psychiatric evaluation would have been helpful to the defense.