STATE OF NEW JERSEY v. JEFFREY MONDELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1970-08T41970-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY MONDELL,

Defendant-Appellant.

_________________________________________

 

Submitted January 13, 2010 - Decided

Before Judges Graves and Newman.

On appeal from an order of the Superior Court

of New Jersey, Law Division, Ocean County,

Indictment No. 02-08-01073.

The Law Offices of Robin Kay Lord, LLC,

attorney for appellant (Ms. Lord and

Richard W. Berg, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel;

Patricia S. Toreki, Assistant Prosecutor, on

the brief).

PER CURIAM

Defendant Jeffrey Mondell appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

Defendant has appealed to this court on two prior occasions. His first appeal involved whether he was entitled to a hearing on the entry of his guilty plea to determine if it was entered knowingly and voluntarily. He asserted that he was on medication when he entered his guilty plea. He also challenged his sentence as being excessive. We affirmed his conviction and found his sentence of 38 years imprisonment with 33 of those years being subject to the 85% parole ineligibility provisions of NERA not to be manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. Mondell, Docket No. A-4587-02 (App. Div. Jan. 14, 2005) (slip op. at 11). However, we affirmed without prejudice for his opportunity to file a motion seeking to withdraw his guilty plea.

Defendant moved to withdraw his guilty plea. That matter was heard and denied by the trial court and affirmed by us. State v. Mondell, No. A-3281-06 (App. Div. Oct. 18, 2007). There, we agreed that the guilty plea was entered voluntarily and knowingly substantially for the reasons stated by the trial court in its comprehensive oral decision. Id. at 6-7. In denying the motion to withdraw, the trial court noted that defendant was taking the medication known as Trazodone, an antidepressant with side effects of a sedating nature in some patients. The trial judge was satisfied that

those drugs did not rise to the level of impairing Mr. Mondell's ability to knowingly and voluntarily waive his right to trial and enter a plea agreement; that he fully understood the consequence of the plea [and] the parameters of the sentence.

In our first decision, we traced the various criminal events that defendant and his wife engaged in and described them as follows:

Defendant's guilty plea arises from a series of robberies that took place on March 13, May 8, June 3, and June 11, 2002, in Ocean County. On June 11, 2002, Little Egg Harbor police officers were dispatched to Mystic Pharmacy on Radio Road in Mystic Island in response to a report of an armed robbery. By the time the officers arrived at the scene, the suspects had already fled. Various witnesses at the scene described the suspects as a white female and male, in a black Ford Taurus. Shortly thereafter, Officers Steve Bogart and Michael Pritch observed a vehicle that matched the description of the suspects' vehicle. The vehicle was being driven by codefendant and defendant was lying in the back seat. After pulling the vehicle over, the officers exited the patrol car, drew their weapons, positioned themselves behind the car doors, and ordered the occupants to turn off the ignition and throw the keys out the window. Meanwhile, backup units arrived.

As codefendant exited the vehicle, she was ordered to get down on the ground. Instead of exiting the vehicle, defendant started firing gunshots at the officers from the driver's side rear window. The officers returned fire. After several rounds were fired, defendant stopped shooting. Codefendant then ran to the vehicle and shouted, "I think he's hurt." The officers approached the vehicle, and saw defendant lying on the seat bleeding from his shoulder. Defendant and codefendant were taken into custody and the officers searched the vehicle and found a fully loaded Colt AR-15 assault rifle, along with a .45 caliber semiautomatic handgun.

. . . .

At his plea hearing, defendant admitted to committing the robberies on March 13, May 8, June 3, and June 11, 2002. He also admitted that on all four occasions he was masked, armed with a handgun, and, at gunpoint, demanded prescription drugs from the employees. He agreed that after the employees filled a bag with pills he fled the scene in a car driven by his wife. Defendant also agreed that when stopped by the police on June 11, 2002, he was armed with a handgun and fired three shots at the police officers. Defendant conceded that it was his intention to fire at the police officers and he was aware at the time that his action constituted a substantial step towards killing the police officers. Finally, defendant admitted that the assault rifle found in the car was acquired by him in Ohio, and that he brought it with the intention of possibly using it during the robbery on June 11, 2002.

[Mondell, supra, No. A-4587-02, at 1-5.]

In defendant's latest challenge through post-conviction relief, he contends that he was not informed of the results of Dr. Verdon's evaluation and potential defenses of diminished capacity and intoxication until the day of the plea hearing when he was under the influence of Trazodone as prescribed by the jail psychiatrist. He claims that his attorney was derelict in not recognizing that he was under the influence of Trazodone which constituted ineffective assistance of counsel. He also maintains that once his trial attorney obtained the report mentioning the potential defenses of diminished capacity and intoxications, his attorney did not properly research and investigate these defenses. Again, he asserts that there was a denial of effective representation at the plea hearing.

In rejecting these contentions, the PCR judge concluded that counsel was not deficient by rejecting the contention that defendant's attorney did not fully investigate the possible defenses of diminished capacity and intoxication. The PCR judge pointed out that it was defense counsel who arranged for defendant to be examined by the psychiatrist in the first place to explore any possible defenses. Dr. Verdon indicated that defendant was not able to form a requisite intent to commit robbery and attempted murder. Defendant did not indicate "what any further investigation would reveal or why a further investigation would be necessary." Thus, counsel's actions were not deficient under the first prong of the test elaborated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 52 (1987).

The PCR judge went a step further and indicated that the evidence of record did not support a conclusion that defendant was unable to form the necessary intent which was an element of the robberies and attempted murder charges. The judge then recited what the record revealed as to the commission of these various offenses:

[t]he evidence shows that the defendant committed four armed robberies of pharmacies over the course of four months in 2002. In each robbery, the defendant wore a mask, aimed a gun at a pharmacist and demanded prescription drugs. After the fourth robbery, with patrol cars in pursuit, the defendant first attempted to avoid apprehension by demanding that the codefendant keep driving. When the codefendant stopped the car, the officers ordered the two to exit the vehicle, the defendant aimed a semi-automatic handgun at the officers and fired multiple times. Although the defendant now asserts that he did not intend to injure the officers, a photograph of one of the patrol cars showed that two bullets struck the door behind which one of the officers was standing. During the plea hearing, the defendant was able to recall his actions during the robberies, including the fact that he had fired three shots at the officers.

Therefore, the defendant's actions appear to be calculated and deliberate and there is strong evidence that he was fully aware of the nature of his actions at the time the crimes were committed.

In addressing whether counsel was deficient for failing to properly inform defendant of the diminished capacity and intoxication defenses, the PCR judge explained that defendant was unable to show that he was prejudiced because the record did not support the claims. Moreover, defendant did not furnish any evidence that these defenses were not explained to him by his attorney prior to entering a guilty plea. Defendant only made bald assertions to counsel's alleged substandard performance but did not support those facts through affidavits or certifications by witnesses having personal knowledge. State v. Cummings, 171 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The PCR judge further noted that the plea transcript established that "the defendant had read the report, that the report contained potential defenses, and that the defendant was aware that by pleading guilty he waived the right to assert those defenses."

With regard to the contention that counsel failed to insure that his use of Trazodone did not impair his ability to waive his rights and enter a guilty plea, that argument was essentially presented in defendant's motion to withdraw his plea and rejected.

Lastly, the PCR judge observed that defendant's claim that he was overcome by stress, medication, and pressure from trial counsel during the pre-hearing which rendered his plea involuntary had been raised on a number of occasions. At this juncture, the PCR judge was satisfied that defendant was unable to make a prima facie showing of ineffectiveness on this ground because he cannot show trial counsel's actions resulted in any prejudice. He also was satisfied that defendant failed to make a prima facie showing of ineffectiveness and did not provide a basis to convene an evidentiary hearing.

On appeal, defendant raises the following issues for our consideration:

POINT I

COUNSEL SHOULD HAVE BEEN AWARE THAT PETITIONER WAS ON MEDICATION THAT IMPAIRED HIS CAPABILITY TO WAIVE HIS RIGHTS AT THE TIME OF THE PLEA HEARING, AND THIS FACT COUPLED WITH THE IMPROPER PRESSURE TRIAL COUNSEL EXERTED TO FORCE PETITIONER INTO ACCEPTING THE PLEA AGREEMENT, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. SINCE PETITIONER PRESENTED A PRIMA FACIE CLAIM, THE COURT BELOW ERRONEOUSLY DENIED AN EVIDENTIARY HEARING TO ESTABLISH THE PREDICATE FACTS FOR THIS CLAIM.

POINT II

TRIAL COUNSEL'S FAILURE TO PROPERLY INFORM PETITIONER CONCERNING THE DEFENSE OF DIMINISHED CAPACITY AND INTOXICATION DENIED PETITIONER HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF U.S. CONST., AMEND. SIX AND N.J. CONST., ART. 1, 10. SINCE PETITIONER PRESENTED A PRIMA FACIE CLAIM, THE COURT BELOW ERRONEOUSLY DENIED AN EVIDENTIARY HEARING TO ESTABLISH THE PREDICATE FACTS FOR THIS CLAIM.

POINT III

THE FAILURE OF PETITIONER'S TRIAL COUNSEL TO PROPERLY RESEARCH AND INVESTIGATE THE POTENTIAL AND MERITORIOUS DEFENSES OF DIMINISHED CAPACITY AND INTOXICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHTS UNDER U.S. CONST., AMEND. SIX AND N.J. CONST., ART. 1, 10. SINCE PETITIONER PRESENTED A PRIMA FACIE CLAIM, THE COURT BELOW ERRONEOUSLY DENIED

AN EVIDENTIARY HEARING TO ESTABLISH THE

PREDICATE FACTS FOR THIS CLAIM.

We have carefully considered defendant's arguments in light of the entire record and reject them. We affirm substantially for the reasons expressed by Judge Den Uyl in his oral decision of November 12, 2008. We add the following brief comments.

The contention that defendant was impaired by medication which impacted his ability to waive his rights at the time of his plea hearing has already been rejected in his motion to withdraw his guilty plea. Couching the claim in ineffective assistance of counsel terms does not change the fact that the trial court and this court have already decided that his guilty plea was knowingly and voluntarily entered, notwithstanding that he was taking Trazodone, an anti-depressant drug. Under Rule 3:22-5, defendant is barred from raising an issue that has already been expressly adjudicated. The underlying fact of the voluntariness of the plea has already been decided and cannot be raised again under the guise of ineffective assistance of counsel.

During the taking of the plea, defendant acknowledged that he was aware of the potential defenses through Dr. Verdon's report and, nonetheless, was giving up whatever defenses he might have by pleading guilty. There is no certification from defendant disputing what he responded to under oath at the time of the plea. Furthermore, the notion that defendant was pressured into taking the plea on the day it was entered was substantially undermined by the fact that his attorney met with him the week before to discuss whether a plea should be entered or a trial should be pursued because of the plea cutoff date. Thus, the decision to enter a plea had to be decided at that time. Defendant had at least a week's time to consider what had transpired and, even so, he proceeded to enter his guilty plea. We fail to see how this resulted in the "pressure" that defendant alleges he was under. Moreover, defendant did not seek to withdraw his plea after it was entered nor did he raise any concern at the time of his sentencing. His allocution at sentencing consisted of an apology to the police officers and to his family. He added that "I know what I did was wrong. And I'm willing to accept punishment."

Defendant makes much of trial counsel's purported failure to research and investigate the potential defenses of diminished capacity and intoxication. He refers to them as meritorious. We disagree. We need not reiterate the facts which have already been referenced previously in our prior opinion and by the PCR judge. Defendant should not confuse the defense of diminished capacity with the motive to commit these crimes in order to feed his drug habit by stealing pain killers from a pharmacy. Defendant could not secure the drugs, such as Percocet and Vicodin, legally so he employed illegal means by resorting to armed robbery from local pharmacies where the drugs were kept and wearing a mask to conceal his identity. These were deliberate and planned criminal actions. We see nothing meritorious in the defense of diminished capacity under the circumstances.

 
The order denying post-conviction relief is affirmed.

(continued)

(continued)

2

A-1970-08T4

January 26, 2010