STATE OF NEW JERSEY v. SEAN GARCIA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3064-06T43064-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN GARCIA,

Defendant-Appellant.

_______________________________

 

Submitted July 29, 2008 - Decided

Before Judges S.L. Reisner and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-09-1792.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel;

Jacqueline A. Farrell, Legal Assistant, on the brief).

PER CURIAM

Defendant Sean Garcia appeals from the order of the Criminal Part entered on December 1, 2006, denying his petition for post-conviction relief. He presents the following issues for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THAT HIS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE EXTENT OF HIS MENTAL HEALTH ISSUES TO DETERMINE WHETHER THESE ISSUES SUPPORTED A DIMINISHED CAPACITY DEFENSE AND/OR COMPROMISED HIS ABILITY TO ENTER A KNOWING AND VOLUNTARY GUILTY PLEA.

POINT TWO

IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

Having reviewed the record in light of these contentions, we affirm.

Defendant was indicted for first-degree robbery, contrary to N.J.S.A. 2C:15-1, and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a). These offenses occurred on July 8, 2003. On December 15, 2003, defendant pled guilty to both counts of the indictment in exchange for the State's recommendation of a ten-year sentence on the armed robbery charge, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On April 2, 2004, defendant was sentenced pursuant to the plea agreement, to a term of ten years with an eighty-five percent period of parole ineligibility on the armed robbery charge and a concurrent sentence of four years on the resisting arrest charge.

On March 8, 2005, defendant appealed his sentence pursuant to our Excessive Sentence calendar. R. 2:9-11. At that argument counsel contended that the sentencing judge erred in failing to find mitigating factor number four, namely that there were "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" pursuant to N.J.S.A. 2C:44-1(b)(4). We affirmed defendant's sentence. State v. Garcia, No. A-5894-03 (App. Div. March 8, 2005).

On October 6, 2006, defendant filed a petition for post-conviction relief, claiming ineffective assistance of trial counsel for failure to "investigate whether [defendant] was competent to plead guilty and/or understand the consequences of his plea since [defendant] had a lengthy psychiatric history prior to committing this offense[.]" In support of this contention defendant submitted a psychiatric assessment dated October 31, 1997, diagnosing him with "Attention-Deficit/Hyperactivity Disorder [ADHD/ADD], Combined Type[.]" The petition indicated that defendant's treatment ended in 2000 when he was released from a two-year in-patient program at Summit Quest in Pennsylvania.

On December 1, 2006, the court heard argument on defendant's post-conviction relief petition. Based on the record before it, the court concluded that trial counsel had not been ineffective for failing to investigate defendant's mental state in 2003 when defendant's last treatment had concluded three years earlier. The judge noted that there "wasn't a current psychiatric evaluation [at the time of defendant's sentence]. . . . I would think looking back nobody felt it was necessary."

The judge reviewed the transcript of defendant's plea and noted that defendant pled guilty voluntarily, stated that he was satisfied with the services of his attorney, and presented a factual basis for the plea. The judge reviewed defendant's pre-sentence report in which "defendant admitted his involvement in this particular matter. The victim identified him as being the perpetrator of this particular robbery." The report also contained defendant's statement that he was "in good health, both physically and mentally," notwithstanding his prior history. The court found:

From the record that I have before me, . . . the reality is we're dealing with records that were at a minimum three years before this particular offense had occurred.

In addition to that, there's been no record supplied to this court or indication to this court that if the attorney had done that, that it would have made a difference in this particular case.

There's been no attempt to document what his conditions were at the time of this particular event.

. . . .

I think the defense counsel . . . did work out a good deal for his client, and I'm not prepared to say that he was incompetent when faced with a report that had three year old incidents of attention deficit disorder . . . and an indication that the defendant was fine at that particular time, that he had an obligation to explore further.

. . . .

I also am clear in my mind that defense counsel in this PCR has not satisfied the second prong to demonstrate that it would have prejudiced the defendant in some fashion.

A defendant must prove by a preponderance of the evidence that he is entitled to post-conviction relief. State v. Preciose, 129 N.J. 451, 459 (1992). To warrant an evidentiary hearing, a defendant must make a prima facie showing of "a reasonable likelihood that his . . . claim will ultimately succeed on its merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Entitlement to a hearing on a claim of ineffective assistance of counsel requires a showing that defendant is reasonably likely to succeed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). Defendant must demonstrate first that his counsel's performance was deficient and, secondly, that such deficient performance prejudiced the outcome in defendant's case. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

The gravamen of defendant's ineffective assistance claim is trial counsel's failure to investigate defendant's mental state in 2003, based upon treatment records the most recent of which were three years old. Defendant's petition presented no evidence that his prior diagnosis of and treatment for ADHD/ADD affected either his mental state or his cognitive functioning in 2003.

 
Under these circumstances, we concur with the trial judge that defendant did not satisfy his two-prong burden and failed to establish either deficient performance by his trial counsel or a prejudicial outcome. Denial of defendant's post-conviction relief petition in the absence of an evidentiary hearing was proper.

Affirmed.

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A-3064-06T4

August 14, 2008