STATE OF NEW JERSEY v. DUANE MYLAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0604-08T30604-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUANE MYLAND,

Defendant-Appellant.

_____________________________

 

Submitted June 15, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2847.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Stephen Pogany, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Duane Myland appeals from an April 20, 2008 order denying his petition for post-conviction relief (PCR).

In connection with the stabbing death of Macklyn Atkins on October 13, 2001, defendant was indicted for first-degree murder and other associated offenses. According to defendant's description of the offense, he had asked the victim to repay him some money. The victim pulled a knife and threatened defendant. When the victim turned away, defendant fatally stabbed him in the back. Defendant then called 911 and reported that he had killed someone. On this record, there appears to be no dispute that the killing occurred in front of a crowd of people. The day after his arrest on October 13, defendant was hospitalized with psychotic symptoms, secondary to substance abuse withdrawal. He was later diagnosed with schizophrenia, paranoid type.

Defendant accepted a plea offer, pursuant to which he pled guilty to aggravated manslaughter. On May 2, 2003, he was sentenced consistent with the plea agreement, to eighteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed his sentence on an Excessive Sentence calendar. State v. Myland, No. A-3184-03T4 (App. Div. Aug. 2, 2006).

Defendant next filed this PCR petition, contending: that his trial counsel was ineffective for failing to have defendant examined to determine if he was suffering from diminished mental capacity at the time of the killing; that trial counsel should not have recommended that defendant plead guilty to aggravated manslaughter, as opposed to manslaughter; and that trial counsel failed to present mitigating factors at sentencing. In a written opinion issued on April 10, 2008, Judge Cassini rejected these arguments.

First, the judge noted that trial counsel had defendant examined by a psychiatrist, but the expert had not issued a written report. Hence, based on the record presented to Judge Cassini, there was no basis to determine that the failure to obtain a written report would have made a difference to the outcome had defendant chosen to go to trial. Further, petitioner did not present evidence that he would have gambled on an insanity defense, gone to trial, and risked "a possible 30 years of jail time" instead of taking the plea offer. The judge also reasoned that defendant presented no evidence that, had trial counsel interviewed additional witnesses, he could have convinced the prosecutor to offer a more favorable plea agreement. Finally, Judge Cassini was not persuaded that if trial counsel had argued mitigating factors 2, 4, and 11, the sentencing court would have given defendant a sentence lower than eighteen years.

On this appeal, defendant reiterates the arguments he presented to Judge Cassini and emphasizes that had trial counsel been better prepared with a psychiatric expert report, he might have been able to present a defense of passion/provocation manslaughter. Defendant offers the following points of argument for our consideration:

The court should reverse the denial of the defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant established at least prima facie evidence of ineffective assistance of counsel.

2. At the very least, the trial court erred in rejecting defendant's ineffective assistance of claims without an evidentiary hearing.

Having reviewed the record, we conclude that these contentions are all without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm for the reasons stated in Judge Cassini's opinion. We add the following comments.

To be entitled to an evidentiary hearing, defendant must present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992). A prima facie case requires legally competent evidence and not mere "bald assertions." State v. Cummings, 321 N.J Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In this case, defendant speculates that his trial counsel was ineffective because he did not obtain a written report from Dr. Greenfield. However, it is equally possible that counsel first sought an oral report, because he wanted to know whether Dr. Greenfield could render an opinion helpful to the defense before having the expert commit his findings to writing. At the PCR oral argument, defendant's PCR counsel told Judge Cassini that he had not spoken to Dr. Greenfield. However, absent legally competent evidence from Dr. Greenfield concerning what his opinions were, we cannot speculate that he would have rendered a written report helpful to the defense. Based on the record presented, Judge Cassini properly denied an evidentiary hearing and correctly denied the PCR petition.

Affirmed.

 

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A-0604-08T3

June 29, 2010