STATE OF NEW JERSEY v. JOSE I. LEWIS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0662-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE I. LEWIS,

Defendant-Appellant.

______________________________

November 5, 2010

 

Submitted October 6, 2010 - Decided

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 07-04-0179.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

 

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Rachelle C. Jones, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Jose I. Lewis appeals the April 17, 2009 Order denying his petition for post-conviction relief (PCR). We affirm.

On April 26, 2007, defendant was indicted on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), third-degree aggravated assault, with knowing bodily injury, N.J.S.A. 2C:12-1(b)(2) (count two), third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three), third-degree criminal restraint, N.J.S.A. 2C:13-2 (count four), armed robbery, N.J.S.A. 2C:15-1 (count five), and kidnapping, N.J.S.A. 2C:13-1(b) (count six).

The charges result from a September 5, 2006, in-home assault of Martine Cox. Defendant had bound and beaten Cox and, upon his departure, taken $1200 from her home.

Defendant entered pleas of guilty to counts one, second-degree aggravated assault; four, third-degree criminal restraint; and count five, as downgraded to second-degree robbery. The terms of the plea agreement provided that the State would dismiss the remaining charges, not move for an extended term sentence and recommend a nine-year term in prison, subject to an eighty-five percent parole ineligibility bar as provided by the No Early Release Act, N.J.S.A. 2C:43-7.2. Following a hearing, the trial court accepted the defendant's plea as knowingly and voluntarily made. The court was satisfied defendant waived his rights, including the right to remain silent, and be tried by a jury. On August 29, 2007, the trial judge sentenced defendant as recommended by the State and imposed applicable fines and penalties.

Defendant did not appeal his conviction or challenge his sentence. He filed a petition for PCR on July 8, 2008, principally certifying that "[d]uring the plea, [h]e was under the influence of . . . Thorazine, Haldol, and Elavil[,]" which "did not allow him to make a rational, knowing and intelligent waiver of his rights." Defendant argued trial counsel was ineffective because he should have advised the court of the influence of these medications. Defendant adds counsel's representation was deficient because he failed to challenge the grand jury proceeding, request full discovery from the State, move to suppress evidence, obtain an expert opinion regarding the mitigating effects of his substance abuse and mental health impairments, and otherwise properly prepare his defense.

PCR counsel was assigned and submitted a supplemental brief arguing defendant was under the influence of Seroquel, an antipsychotic "mood stabilizing medication used to treat his [b]i-polar disorder," which impaired his ability to freely comprehend the nature and consequences of his guilty plea. The brief notes an attached exhibit, not included in the record, but described in the State's submission as defendant's "own one-page handwritten letter, in which defendant states: I am requesting that my plea agreement be rescind[ed] as defective due to the fact I was under the influence of prescribe[d] medication, 900 mil Seroquel, 1500 mil Debaquale and did not fully understand the ramification of the said plea agreement."

Following argument, the PCR judge, who was not the trial judge, allowed defendant to add additional information, at which time he stated:

I'm not saying that I'm totally innocent or anything, but as far as the medication goes, before I was on it I was definitely a live wire, and after I was put on it[,] I was pretty much in a comatose state. I would do and say whatever anybody told me to do[.]

 

Defendant continued to explain that when he reached prison he was "a zombie," so prison medical officials switched his medication to Lithium.

In an April 14, 2009 oral opinion denying defendant's petition for relief, the PCR judge initially acknowledged the State's assertion defendant's claims were procedurally barred by Rule 3:22-4. Nonetheless, the PCR judge proceeded to consider the merits of the petition.

The court found defendant produced no evidence of the pharmacological effect of the medication. Further, the PCR judge concluded the plea was knowingly, intelligently and voluntarily given at the time it was made. Referring to the sentencing transcript, the court found defendant acknowledged his mental illness, discussed the nature and effect of his medication, reflected no impairments from his treatment and reaffirmed his desire to proceed with the plea agreement prior to sentencing. Defendant appealed.

Defendant presents a single issue for consideration:

THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL [sic], BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Venerio, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Additionally, "[t]o establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463.

We first note defendant's claim that his guilty plea was neither freely nor knowingly made is procedurally barred pursuant to Rule 3:22-4, because it could have been, but was not, raised on direct appeal. Notwithstanding this determination, we also conclude defendant's claims of ineffective assistance of trial counsel fails substantively because the alleged deficiencies do not meet either the performance or prejudice prong of the Strickland/Fritz test.

The record of defendant's plea reflects he was asked whether he had enough time to talk to trial counsel about the case, if counsel fully explained the facts of the case and the likely sentence if convicted by a jury, and whether he was satisfied with trial counsel's explanations and representation. Defendant replied "yes" to each question.

When first placed in custody, defendant, who had been a drug abuser, was evaluated for conditions necessitating treatment. Defendant's bipolar impairment was identified and medication was prescribed. On this issue, defendant informed the court:

[Y]ou know, couple months back I was whack, like kind of like high. [Defense counsel] said, I was real hostile [until] I got the medication I need. Medication helped me out a lot since I've been in jail.

 

I started going to programs. Churches and stuff. I was [] part of the Scared Straight program in the jail . . . . I turned my negative into a positive. For what it was worth.

 

And, I'm ready to take whatever sentence the [j]udge gives me.

 

These facts do show that when defendant appeared for sentencing, he remained compliant with the medication regime prescribed. However, they do not evince an impairment of defendant's cognition, which might support a conclusion that counsel's efforts were either negligent or prejudicial.

Defendant asserts the PCR "[c]ourt should have taken into consideration the nature of the drug . . . and the effects it ha[d] when taken with other medications at the same time." Other than defendant's statements, no evidence on this issue is found in the record. Further, even though defendant's merits brief states corroborating "medical documentation [was] submitted[,]" the PCR transcript and the State's brief describe an absence of medical or pharmacological proofs. Without expert evidence of physiological or cognitive side effects, defendant's naked allegations that he suffered an inability to understand and assess what was happening are insufficient to substantiate the requested relief.

A "court is not obligated to conduct an evidentiary hearing to allow [the] defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008). Accordingly, defendant's conclusory statements do not establish a basis for us to determine counsel's efforts fell short of expected professional competence. Cummings, supra, 321 N.J. Super. at 170.

Moreover, defendant's petition fails to confirm the second part of the Strickland/Fritz test, "'that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Although defendant's verified petition asserts his conviction and sentence must be reversed, at no time does he suggest he would not have entered what was a very favorable plea agreement.

Accordingly, we conclude defendant's petition lacked sufficient merit to warrant relief. In this light, the arguments advanced that an evidentiary hearing was necessary are unavailing.

Affirmed.