STATE OF NEW JERSEY v. JAMES BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5042-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BARNES,

Defendant-Appellant.

_________________________________________________________

September 16, 2010

Submitted August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-05-1884.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary M. Theroux, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Barnes appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. In a single point he argues:

PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WITH RESPECT TO THE CHALLENGE OF PETITIONER'S ENTRY OF THE GUILTY PLEA TO ESCAPE THE HEALTH ISSUES CAUSED HIM BY THE CONDITIONS AT THE ESSEX COUNTY JAIL

We have considered the argument in light of the record and applicable legal standards. We affirm.

On November 9, 2004, defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Under the terms of the plea bargain, the State agreed to dismiss the remaining counts of the indictment that charged defendant with four additional first-degree robberies and related offenses, and to recommend a maximum sentence of ten years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. When questioned by the judge, defendant claimed he was taking "antibiotics and something else" for "an infection from the toxic fumes in the jail." However, he also asserted that he was not under the influence of any drugs that affected his ability to comprehend the proceedings.

Thereafter, prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea. Among other things, defendant asserted he was innocent and that he "did not understand the nature of the charges and consequences of the plea." He also claimed "it [wa]s clear" from his "erratic conduct" that "he [wa]s mentally unstable."

On June 20, 2005, a second judge, armed with the transcript of the plea proceedings as well as defendant's medical records from the jail, denied defendant's motion. Defendant then appeared before the original judge who had accepted his guilty plea and was sentenced in accordance with the plea bargain.

On February 16, 2007, defendant withdrew his direct appeal after it was filed. In March, defendant filed a pro se PCR petition alleging that he had "lied to the judge to save [his] life" when he pled guilty. Defendant claimed he was "diagnose[d] [with] toxic fumes . . . from the Essex County Jail[,]" and was "on serious medications" as a result. Defendant again claimed he was innocent of the charges. In what appears to be a supplemental submission, assigned PCR counsel attached a copy of an investigative report paraphrasing statements made by Carolyn Roxborough, defendant's girlfriend at the time of the offenses. Roxborough claimed that defendant stayed with her in Woodbine, Cape May County, during the days he allegedly committed the robberies in Newark that were charged in the indictment.

In a written opinion dated February 20, 2008, the PCR judge concluded that defendant had presented a prima facie case for relief and ordered an evidentiary hearing. Defendant testified that he told his attorney about the conditions at the jail and how it was affecting his health. Furthermore, defendant claimed to have told his various attorneys of Roxborough's identity and his alibi defense.1

Roxborough also testified. She acknowledged that defendant's PCR counsel was the first person to contact her on defendant's behalf. While she continued to claim that defendant was with her in Woodbine between December 11 and 18, 2003, she admitted that she did not see him between 2000, when they first met, until that time. Instead, they communicated mostly through letters, though none was produced.

Miseo testified as the State's witness. He described the extensive plea negotiations in the case and claimed that he had numerous conferences with defendant before he pled guilty. Defendant "understood what was going on," was in "fine" physical condition, and "his mental capacity was fine." Miseo could not recall discussing an alibi defense with defendant, but did recall defendant "mention[ing] a woman to [him]." Miseo could not remember if he spoke to her.

But Miseo further noted that defendant was "apprehended and identified . . . right at the scene" of the last of the string of robberies alleged in the indictment. Defendant was identified through a photographic array by the other robbery victims, and Miseo claimed that the plea bargain reflected the State's concern regarding the adequacy of the evidence in those instances.

The PCR judge issued a written decision denying defendant's application. After assessing the credibility of the witnesses at the hearing, the judge determined that defendant "pled guilty . . . because he was in fact guilty," that any medication he was taking at the time "did not affect his ability to think in any way," that defendant had enough "time to talk about his case with" his attorneys, that he "never informed his [a]ttorneys . . . that he was pleading guilty because he wanted to leave" the Essex County jail, and that defendant "did not have a viable alibi defense." The judge specifically concluded that defendant's claim -- that he pled guilty only because he wanted to be transferred from the Essex County jail for health reasons -- was "incredible." The judge noted that defendant did not know the name of the doctors he saw at the jail or the diagnosis of his condition. The judge further observed that "no test results" were provided, nor any "certification or testimony from a doctor confirming that [defendant] ha[d] a disease or suffer[ed] from [any] condition[]."

Defendant's sole claim on appeal is that PCR counsel provided ineffective assistance because she failed to submit defendant's medical records to the PCR judge or obtain medical proof of defendant's condition at the time he pled guilty. Regarding a claim that PCR counsel was ineffective, the Court has stated:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.

[State v. Webster, 187 N.J. 254, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)). "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Hicks, supra, 411 N.J. Super. at 376.

PCR counsel certainly advanced the argument that defendant pled guilty under the duress of his alleged medical condition. She solicited testimony from defendant directly on this point during the hearing. Defendant further acknowledges that PCR counsel attached to her brief "copies of prescriptions [defendant] was taking" during the relevant time. He also admits that copies of his medical records were supplied to the trial court in conjunction with his motion to withdraw his guilty plea. The judge who reviewed those records and decided that motion rejected defendant's medical condition as a basis to permit the withdrawal of his plea, further concluding that despite his condition, defendant was fully aware of the consequences of his plea and had entered it knowingly and voluntarily without duress or coercion.

These same conclusions were reached by the PCR judge who had the opportunity to directly assess defendant's credibility on the issue. In short, we conclude that PCR counsel did not provide ineffective assistance to defendant simply because she failed to obtain defendant's medical records or solicit possible medical testimony based upon those records.

1 Robert Miseo negotiated the plea bargain. However, another attorney, Earl Masseo, represented defendant at the time of the plea. A third attorney, Ann R. Sorrel, represented defendant on his motion to withdraw his plea and at sentencing.