August 6, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
PAULINO NJANGO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-09-3244 and 06-11-3542.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the Law Division's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from two judgments of conviction entered against him in 2007 pursuant to a plea agreement. Defendant argues the
Law Division erred in denying an evidentiary hearing on his PCR claim that he was under the influence of prescription medication at the time of the plea, and that his counsel was ineffective because he misled defendant about the terms of the plea and failed to adequately inform defendant about "potential defenses" of insanity, N.J.S.A. 2C:4-1, or diminished capacity, N.J.S.A. 2C:4-2. We reverse and remand for an evidentiary hearing.
In November 2006, an Essex County Grand Jury returned Indictment 06-11-3542 charging defendant with various crimes resulting from a June 23, 2006, incident involving his mother-in-law, Lydia Lorenzo. The indictment charged defendant with first-degree kidnapping of Lorenzo, N.J.S.A. 2C:13-1b(1); first-degree attempted murder of Lorenzo, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree burglary, N.J.S.A. 2C:18-2; third-degree terroristic threats, N.J.S.A. 2C:12-3a; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4d.
In September 2007, an Essex County Grand Jury returned a second indictment, 07-09-3244, charging defendant with various crimes stemming from a May 23, 2007, incident involving his estranged wife, Jennie Rosario, that occurred while defendant was out on bail on the first indictment. The indictment charged defendant with first-degree kidnapping of Rosario, N.J.S.A. 2C:13-1b; first-degree attempted murder of Rosario, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, N.J.S.A. 2C:12-3a; and related weapons charges.
Defendant, a high school graduate, joined the Marine Corps in 2001 and was assigned to a combat unit. He suffered some type of a head injury while sky-diving, and said he began to experience black-outs and "hear voices" thereafter. In 2005, he received an "Other Than Honorable" discharge from the service.
Defendant had married Rosario in October 2004 and they separated in April 2006. He reported that he attempted suicide twice that month by "ingesting pills" and was treated at a local hospital and released. He also claimed he began to drink heavily at this time and engage in drug abuse.
On June 23, 2006 defendant went to Lorenzo's home to seek her help in reconciling with his wife. After Lorenzo told him she had no time to speak with him because she was leaving for work, defendant attacked her and attempted to choke her and stab her with a knife. Police arrived and found defendant on top of Lorenzo with a knife in his right hand.
Defendant was arrested and held at the Essex County Correctional Facility, where a psychiatrist found him "bizarre" and "confused." Because defendant threatened suicide, he was put on suicide watch and medicated. Defendant retained private counsel to represent him on the charges arising from the incident with Lorenzo.
In July 2006, defendant underwent an evaluation for competency to stand trial by psychologist Susie Chung, Ph.D., and was found to be bipolar and suffering "major depressive disorder with psychotic features." While she found defendant competent to stand trial, Chung recommended that defendant continue taking his medications "to ensure that he remains competent[.]"
Counsel arranged to have defendant undergo a psychiatric examination by Peter Crain, M.D., in December 2006. Crain concluded that defendant was suffering from dissociative disorder "not otherwise specified" and "major depressive disorder." His report stated in pertinent part:
I note that during the episodes when Mr. Njango was physically violent with Ms. Lorenzo, each time he had no recollection of what he had done, recalling only a "blackout". What he did recall was letting go when aware that he was choking her. He knew that he had gone into the kitchen to get her water. He called 911 to obtain medical assistance for her. These did not constitute the actions of an assailant intent on killing his victim. He went in and out of an apparent, "Dr. Jekyll and Mr. Hyde, " mental state. While in the Mr. Hyde mode, he had no recollection whatsoever about what he did.
This type of behavior is characteristic of a dissociative disorder. Unacceptable emotions are simply not consciously registered while the individual is taken over by them, and action occurs while bypassing usual cognitive restraint. On this basis, I have the impression that Mr. Njango lacked ability to purposely and knowingly engage in the alleged physically assaultive behavior toward Ms. Lorenzo. Intent and premeditation were both missing.
Since becoming aware of his problem with blackouts and then finding himself in an unintended situation, as well as hearing a voice that commands him to commit violent acts, Mr. Njango has sought medical care within the correctional facility. He presently takes medication, which suppresses auditory hallucinations and relieves depression, now in clinical remission.
I have the impression that the accumulation of stresses, which included the head injury, combat in Iraq, involuntary discharge from the Marines, financial difficulties in trying to start a business upon his return to civilian life, gambling and drinking, as well as the marital problems which led to two separations, all contributed to his mental breakdown. . . . Mr. Njango developed a mental disorder that rendered him temporarily insane at the time of the alleged offense.
OPINION: At the time of the alleged offense on June 23, 2006, Mr. Njango was not criminally responsible. He was laboring under such a defect of reason, a disease of the mind, as to not know the nature and quality of the act that he was doing.
The State arranged a psychiatric examination of defendant with Azariah Eshkenazi, M.D., on April 19, 2007. Eshkenazi concluded that defendant had an intact memory, an appropriate affect and displayed "no evidence of any symptoms of psychosis." He added that defendant "does not meet the criteria for the insanity defense."
Defendant posted bail and was released on April 24, 2007. A month later, defendant attacked Rosario in Maplewood, stabbing and choking her while yelling, "I'll kill you and kill myself." Bystanders called police who arrived and subdued defendant.
On September 24, 2007, defendant appeared briefly in court to enter a plea of guilty, pursuant to a plea bargain, to the charges of kidnapping, attempted murder, burglary and unlawful possession of a weapon under Indictment 06-11-3542, and to the charges of attempted murder, unlawful possession of a weapon and terroristic threats under Indictment 07-09-3244. In return, the State agreed to recommend an aggregate term of incarceration of eighteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During the brief plea colloquy, defendant said he understood the plea, had enough time to speak with counsel and then was taken through a series of terse leading questions to establish a factual basis for the charges. He added he knew he was waiving his right to trial by jury, and had voluntarily signed the plea form. He stated he had taken three "antipsychotic" medications that day, and when asked if the medications "affect in any way" his ability to "make decisions", he responded "No[.]"
On October 17, 2007, defendant was again examined by Chung for competency to stand trial, and again was found competent. Defendant was sentenced in accordance with the plea bargain on November 30, 2007.
His petition for PCR was denied without an evidentiary hearing on May 24, 2010. This appeal followed.
We begin by setting forth the principles that guide our analysis. A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698); State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009). This two-pronged standard has been expressly adopted in New Jersey. Parker, supra, 212 N.J. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).
This additional standard also applies in the context of guilty pleas:
[T]he first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)], and McMann v. Richardson, [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)]. The second, or "prejudice, " requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.
[Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985).]
A defendant who has entered a guilty plea must establish that the alleged ineffectiveness affected his decision to plead. A defendant is entitled to effective assistance in the process of plea negotiation. Missouri v. Frye, 566 U.S., , 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S., , 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398, 410 (2012).
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid.; see also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997).
In the case before us, defendant's argument that his plea should be set aside because he was under the influence of prescription medication at the time he entered the plea is simply a bald assertion that is belied by the record. Defendant presents no evidence that the prescription medications he was taking at that time clouded his judgment or impaired his perception. Moreover, defendant answered the questions put to him in a clear and coherent manner, and explicitly denied that the medication affected him in any way. Additionally, he expressed no misunderstanding or surprise at the time of his later sentencing, a fact which supports the conclusion that his plea was not affected by his prescription medications. Consequently, this argument is without merit.
However, it appears that defendant had at least a colorable defense to the charges brought under Indictment 06-11-3542, given the report of Crain. Yet, at no point during the plea colloquy or at sentencing was mention made of the Crain report on the mental state of defendant at the time of the offenses.
No waiver was made on the record at any time of the insanity defense or any defense based upon diminished capacity. See State v. Marut, 361 N.J.Super. 431, 445 (App. Div. 2003) (concerning defendant's capacity to make a knowing, intelligent, and voluntary waiver of the insanity defense).
While we do not speculate on the prospect of success if such a defense were raised, it is at least clear that defendant had a right to expect his counsel to inform him about the defense and to discuss its application in the case. United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990). Here, however, the record is utterly silent on the subject of this defense despite an expert report that clearly supported it.
Moreover, we have no way of knowing whether the defense was raised as to the charges set forth in the second indictment. We simply do not know whether defendant and his attorney discussed the issue and what conclusion they reached. Nonetheless, given that defendant obviously was prepared to proceed with an insanity or diminished capacity defense as to the first indictment, it was incumbent on the court to take the time to elicit the underpinnings of any potential defenses during the plea colloquy because "in the long run, that approach may prove more beneficial and less time consuming because it is better to know then whether the defendant has a potentially valid defense and whether he is willing to waive it and enter a guilty plea." State v. Munroe, 210 N.J. 429, 445 (2012).
All these uncertainties require an evidentiary hearing. Only after the completion of an evidentiary hearing can a court be satisfied that defendant's plea was knowing, intelligent and voluntary. Cf. State v. Cecil, 260 N.J.Super. 475, 489 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993) (detecting no error where the trial court allowed a defendant with a history of bizarre behavior to forego an insanity defense, where the defendant "was able to make a knowing, intelligent, and voluntary waiver of his right to assert the defense").
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.