STATE OF NEW JERSEY v. CHARLES MORA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3616-08T43616-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES MORA,

Defendant-Appellant.

_________________________________________________

 

Submitted June 9, 2010 - Decided

Before Judges Cuff and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

04-09-1538.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Tracey A. Agnew,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged with first-degree attempted murder, first degree robbery, four counts of aggravated assault, two counts of possession of a weapon for an unlawful purpose, two counts of unlawful possession of a weapon, and terroristic threats. Following extensive plea discussions, defendant agreed to plead guilty to second-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). Additionally he pled guilty to a charge of third-degree assault, N.J.S.A. 2C:12-1b(2), set forth in a separate accusation. In exchange, the State agreed to recommend, pursuant to N.J.S.A. 2C:43-7, an extended-term sentence of sixteen years, subject to the eighty-five percent period of parole ineligibility established by the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. It was stipulated that, if convicted of the first-degree crimes, defendant would have been eligible for a sentence of twenty years to life under the three-strikes law. N.J.S.A. 2C:43-7.1.

At sentencing, defendant sought to withdraw his guilty plea. However, his motion was denied, and he was sentenced in accordance with the plea agreement to sixteen years in custody, subject to NERA for the second-degree robbery, to a concurrent ten-year term subject to NERA for the second-degree assault, and to a concurrent five-year term for the third-degree assault. Defendant appealed his sentence. We affirmed it, and the Supreme Court denied certification. State v. Mora, No. A-3269-05 (App. Div. June 4, 2007), certif. denied, 195 N.J. 421 (2008).

Thereafter, defendant moved for post-conviction relief (PCR). His motion was denied without an evidentiary hearing on October 17, 2008. This appeal followed.

I.

On appeal, defendant makes the following arguments:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Counsel failed to provide effective assistance during plea bargaining and coerced defendant into accepting the plea offer.

B. Counsel failed to prepare an involuntary intoxication defense.

C. Counsel failed to prepare a diminished capacity defense.

D. Counsel failed to consult with defendant in a meaningful manner.

E. Counsel failed to develop a defense strategy.

F. Counsel failed to provide effective assistance during sentencing.

G. Counsel was ineffective since he had defendant enter a plea which was not knowing and voluntary and which was not supported by an adequate factual basis.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RENDERED THE SENTENCING UNFAIR.

POINT V

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We affirm.

II.

A plea hearing was conducted by Judge John O'Shaughnessy on January 11, 2005. As a factual basis for the plea, defendant admitted that, on June 14, 2004, he had attacked a woman in her apartment, striking her in the face with a pan and causing serious bodily injury. Defendant stated that, prior to the attack, he had consumed a substantial quantity of drugs. However, defendant agreed that he and counsel had discussed whether this fact provided a basis for a legal defense, and that counsel had advised defendant, based on counsel's analysis of the case and review of the facts, that it did not. Defendant stated that he was satisfied with that assessment. Following that exchange, the judge asked a clarifying question:

Sir, . . . on that issue, you understand, sir, that what counsel is saying, and he set it forth clearly, is that by your voluntarily ingesting of those drugs, that that could not be used as a defense to relieve you of the responsibility for your actions.

Defendant accepted that statement.

During the plea colloquy, defendant additionally stated that he had been drugged. The prosecutor called this statement to the judge's attention, at which point, the judge stated to defendant:

So what the Assistant Prosecutor is concerned about and I'm concerned about is if you said that somehow you . . . took in these drugs or that somebody gave you these drugs and you didn't know you were taking these drugs, that would be a valid defense. In other words, you know, if you were forced to take drugs and then you committed an illegal act while forced to take those drugs, then that would be a valid defense because it's not voluntary.

The question is, and the important question is, did you take these drugs? Did you know that in taking these drugs that that was a voluntary act? Nobody forced you to take those drugs, did they?

Defendant responded "no."

The colloquy then continued with defendant's admission that, in order to obtain funds to purchase more drugs, while the victim remained conscious, he stole her food card and jewelry. Getting a factual basis for the assault and robbery was difficult and required multiple off-the-record conferences between defendant and his counsel. Nonetheless, the judge was scrupulous in requiring that the factual basis for the plea be given by defendant in his own words.

In connection with the plea to the third-degree assault set forth in the accusation, defendant admitted that on September 9, 2004, while incarcerated in the Hudson County Correctional Center in Kearny, he became involved in an argument with an inmate named Victor Harvey. The argument escalated into a confrontation, and defendant stabbed Harvey with a metal shank that he had sharpened, causing bodily injury.

As we stated previously, at sentencing, defendant, represented by a new attorney, sought to withdraw his plea, stating that he had not been able to review discovery prior to entry of that plea. Therefore, he claimed, he was not able to prepare his defenses, properly discuss those defenses in detail with his attorney, or seek a better plea offer. Additionally, defendant claimed that his plea attorney was ineffective in not advocating forcefully for a better plea bargain. Defendant claimed as well that, despite his denial at the plea hearing that he had ingested any drugs prior to that hearing, he had in fact been given two blue pills by a fellow inmate that he suspected were Elavil, and that "put him into a mental state of unknowing, not understanding what was happening, what was being said to him." Defendant's lack of understanding, counsel argued, was reflected in the number of times that the judge explained matters to him at the plea hearing.

Defendant's motion was denied in an oral opinion by Judge O'Shaughnessy that drew extensively from his close questioning of defendant at the plea hearing regarding matters such as his use of drugs or alcohol before the proceedings, his understanding of his oath to tell the truth, his satisfaction with the advice given by his attorney, the voluntary nature of his plea, his understanding of the difficulties involved in retracting a plea, his understanding of the terms of the plea and sentence including its NERA component, his understanding that he was initially subject to the three-strikes law and that his counsel had negotiated a plea that did not implicate that law, and his understanding that his attorney had not found a legal basis for a defense of diminished capacity. The judge noted, as well, the fact that defendant had provided a factual basis for the plea in his own words, as the judge required. The judge then concluded on the basis of his questions and defendant's responses as recounted by the judge that "defendant knowingly, voluntarily and understandingly entered his guilty plea." After discussing applicable law, the judge held:

[T]he record clearly substantiates that [defendant] was not confused in any way, that any confusion that he may appear to have had was adequately answered, as set forth in the record at the time of the taking of the plea on January the 11th.

The defendant's demeanor and conduct at the time of his plea belie any confusion that he now says that he had. Also, the court finds no credence in now his statement that another inmate offered him a couple of blue pills.

Again, taking the overall record under consideration . . . I am clearly convinced and completely satisfied that this defendant entered a knowing and intelligent waiver after having received the advice of competent counsel, which he clearly indicate[d] for the record. And accordingly, the motion is denied.

Sentencing then took place as previously described.

Following our affirmance of defendant's sentence on appeal and denial of certification, defendant filed a petition for PCR, arguing, among other things, ineffectiveness of counsel in failing to pursue a diminished capacity defense arising from the fact that defendant acted in a fit of rage and a defense of involuntary intoxication arising from the fact that he had been drugged prior to the assault. He argued additionally that there was an insufficient factual basis for the plea, and he had been coerced by counsel into entering into it. Ineffective representation by appellate counsel was also raised.

The petition was heard by Judge Fred Theemling and denied without an evidentiary hearing. The judge ruled that evidence that defendant had been enraged did not provide a basis for a diminished capacity defense, because defendant did not demonstrate any mental disease or defect that would negate the state of mind required in connection with defendant's crimes. In this regard, the judge relied on N.J.S.A. 2C:4-2 and State v. Reyes, 140 N.J. 344, 364-65 (1995).

The judge also found that counsel had not been ineffective in failing to pursue an involuntary intoxication defense, because there was insufficient evidence that defendant had been involuntarily exposed to any substance. Even if he had been drugged, there was no basis for determining that the drugging, rather than defendant's admitted voluntary use of cocaine on the night in question, had caused defendant to act as he had acted. The judge noted that an involuntary intoxication defense had been rejected systematically where "any part of the intoxication resulted from voluntary use of illegal drugs or of legal intoxicants for which the defendant had a known intolerance." State v. Sette, 259 N.J. Super. 156, 176 (App. Div.), certif. denied, 130 N.J. 597 (1992). Thus, counsel's failure to raise the defense of involuntary intoxication could not be considered unreasonable in the circumstance.

Additionally, the judge found that an adequate factual basis for the plea to aggravated assault and robbery had been presented, relying in this respect on his examination of the record and on State v. Sainz, 107 N.J. 283, 292 (1997). He also determined that the record of the plea proceeding evidenced no coercion. The judge held:

Generally, [r]epresentations made by a defendant at a plea hearing concerning the voluntariness of the decision to plead, as well as any [findings] made by the trial court when accepting the plea constitute a formidable barrier which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74 [ 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147], a 19[7]7 case.

That is so because "[s]olemn declarations in open court carry a strong presumption of . . . verity." State v. DiFrisco, 137 N.J. 434, 452 (1994).

As a final matter, the judge addressed defendant's claim that he was denied the effective assistance of appellate counsel, who failed to contest the fact that defendant's motion to withdraw his plea was denied. In this regard, the judge found, under standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), that it was not unreasonable for appellate counsel to decide not to challenge the denial of defendant's motion. Further, the judge found that defendant had not provided any evidence of acts or omissions by trial counsel, nor by appellate counsel, that were outside the wide range of professionally competent assistance under standards established by Strickland or that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Thus, ineffective assistance of counsel had not been demonstrated. As a consequence, the petition was denied.

III.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland, supra, id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted Strickland's precepts in State v. Fritz, 105 N.J. 42, 58 (1987).

A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactics or strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56. Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys to be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

When petitioning for post-conviction relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to that relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). An evidentiary hearing is required only if a defendant establishes a prima facie basis for relief, and factual issues remain as to the merits of his claim. Preciose, supra, 129 N.J. at 462-63.

On appeal, defendant raises the claims that were addressed by Judge Theemling in his oral decision on defendant's motion for PCR. We affirm substantially on the basis of the judge's thorough opinion. In this regard, we agree with the judge's factual conclusion that defendant entered into the plea knowingly and voluntarily, that no coercion occurred, and that an adequate factual basis was set forth. We also agree with his legal conclusions that the defenses of involuntary intoxication and diminished capacity would have been unavailing in this case and, as a result, defense counsel was not ineffective in declining to raise them. Likewise, we concur with Judge Theemling's conclusion that appellate counsel was not ineffective in failing to challenge Judge O'Shaughnessy's denial of PCR, finding no viable grounds for such a challenge.

We add only the following. We find no factual basis in the record for defendant's claim that defense counsel provided ineffective assistance at the plea bargaining stage. In this regard, counsel managed to reduce the multiple charges against defendant, including first-degree attempted murder and first-degree robbery, to the two second-degree charges of aggravated assault and robbery. By securing a reduction of the first-degree charges to second-degree robbery and aggravated assault, counsel eliminated defendant's exposure to a sentence of twenty years to life under the three-strikes law, and he secured a very favorable sentence, given the nature of the crime and the severity of the victim's injuries, of sixteen years subject to NERA. The extent of counsel's efforts is clearly evident from our review of the record and was noted by Judge O'Shaughnessy, who stated on the record that, in light of the facts and defendant's prior history, defense counsel "could not have done a better job for Mr. Mora . . . ."

Defendant's argument that counsel failed to consult with him in a meaningful manner and "refused to discuss the case with defendant or any possible defenses" is also belied by the record of the plea hearing, which reflects the "many, many occasions" upon which defense counsel discussed the case with defendant, including defendant's statement, the discovery provided to defendant, his recollection of events, and the defenses of involuntary intoxication and diminished capacity. Further, the record reflects defense counsel's uncontradicted statement that, on "many, many occasions" he had explained to defendant the legal and other ramifications of going to trial and the potential sentence that defendant might expect, as well as analyzing for defendant the benefits of the State's plea offers. Although defendant claims that defense counsel failed to investigate the case, he offers no avenues of investigation that counsel failed to pursue.

Defendant claims additionally that defense counsel failed to develop any strategies to defend his case. However, we decline to accept such a bald assertion as providing a sufficient basis for PCR. Mitchell, supra, 126 N.J. at 579; State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, to the extent that counsel's strategy at the time of the plea had focused on plea negotiation, we find it to have been reasonable, given defendant's potential exposure if he had been convicted at trial.

We likewise find no deficiency in counsel's representation of defendant at sentencing, and note in that regard that defendant points to none that relate to this stage of the proceeding. Defendant entered knowingly and voluntarily into a negotiated plea with an offer of sixteen years imprisonment subject to NERA. That was what he received. No evidence has been presented that would suggest that a lesser sentence should have been imposed.

Having found no error or ineffectiveness in counsel's performance, we likewise reject his argument that "cumulative errors deprived defendant of due process and rendered the sentencing unfair."

In Point III of defendant's brief, in accordance with State v. Rue, 175 N.J. 1, 19 (2002) and State v. Webster, 187 N.J. 254, 257 (2006), counsel sets forth the following arguments: (1) robbery as an afterthought is not encompassed in our Criminal Code; (2) the sentence constituted an abuse of discretion which violated defendant's rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005); (3) the prosecutor breached the plea agreement by filing a motion for an extended term which was not part of defendant's plea agreement; (4) defendant did not have a clear understanding of the direct consequences of his plea; and (5) counsel permitted defendant "to plead guilty to a degree of an offense of which he was not indicted." We decline to address these arguments in a written opinion, finding them to be of insufficient merit to warrant any discussion. R. 2:11-3(e)(2).

As a final matter, defendant claims error in Judge Theemling's determination not to hold an evidentiary hearing in this matter. However, because a prima facie case of ineffectiveness on the part of counsel was not presented, we find that the judge's decision was proper. Preciose, supra, 129 N.J. at 462-63.

Affirmed.

 

The discovery in the case, as described by Judge Theemling at the hearing on defendant's motion for PCR, indicated that, after smoking cocaine at a motel, defendant and the victim took a taxi to the victim's apartment, where they drank beer and fell asleep. Upon awaking, defendant determined that the victim was not a female as he had supposed. In a rage because of the mistaken identity and his suspicion that he had been raped while asleep, defendant went to the kitchen, retrieved a frying pan, and commenced to beat the victim with the pan and also with a hammer. As the result of the assault, the victim suffered a fractured jaw, bone contusions of the left hand, three fractures to the cranium, fractures to the left eye socket, rupture of the right breast implant, and several lacerations to the face. The victim received 135 stitches for his injuries.

Elavil is an antidepressant.

We have regularized the citations in this extract and have removed quotation marks from the judge's discussion of Blackledge, which he paraphrased.

(continued)

(continued)

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A-3616-08T4

August 23, 2010