STATE OF NEW JERSEY v. JAY HILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1614-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

JAY HILL,

Defendant-Appellant/

Cross-Respondent.

___________________________

April 28, 2011

 

Argued January 31, 2011 - Decided

 

Before Judges Rodr guez and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. S-2104-02.

 

Alan Dexter Bowman argued the cause for appellant/cross-respondent.

 

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent/cross-appellant (John L. Molinelli, Bergen County Prosecutor attorney; Ms. Cozzi, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief (PCR) and his motion to withdraw his guilty plea entered pursuant to a negotiated agreement.1 The gravamen of both applications was that at the time of the offenses charged he was suffering from certain psychological disorders which contributed to his behavior and which his attorney failed to explore as a possible diminished capacity defense. We affirm.

In 2002, defendant was indicted on two counts of third-degree assault on sheriff's officers, N.J.S.A. 2C:12-1(b)(5), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The charges stemmed from his municipal court trial on a motor vehicle violation, namely failing to stop at a stop sign, in violation of N.J.S.A. 39:4-144. Defendant appeared pro se at that trial, which was held at the Bergen County Courthouse on June 12, 2002. During the proceedings, defendant became emotional in his testimony to a degree that led the judge to tell him to "take a little emotion out of this" and to "calm down." A short time later, while addressing the judge, defendant apparently became agitated and the following colloquy ensued:

UNIDENTIFIED2: Quiet down.

 

THE COURT: Hold it, hold it, both of you please.

 

. . . .

 

UNIDENTIFIED: Now I told you to quiet down. Don't be yelling when the judge says no, okay?

 

THE COURT: Mr. Hill, --

 

[DEFENDANT]: You get out of my face.

 

UNIDENTIFIED: He said quiet down.

 

[DEFENDANT]: You get out of my face.

 

THE COURT: Mr. Hill, --

 

UNIDENTIFIED: He said quiet down.

 

[DEFENDANT]: I am not intimidated because you wear that badge.

 

UNIDENTIFIED: Easy, easy --

 

THE COURT: All right, hold it, hold it, hold it --

 

UNIDENTIFIED: -- easy, easy --

 

[DEFENDANT]: Get off [of] me.

 

. . . .

 

THE COURT: Where's the button?

 

[DEFENDANT]: Get off [of] me.

 

. . . .

 

THE COURT: I'm going off.

 

(Judge leaves the court at this point)

 

When the judge returned to the bench, he held a contempt proceeding pursuant to Rule 1:10-1 and described what had transpired; the judge stated that after he had twice advised defendant to calm down,

[at] this point the sheriff's officer approached the defendant in [an] attempt to calm him down and told him to be quiet, that the judge had told him to . . . calm down. At this point [defendant] began arguing with the sheriff's officer with words to the effect of get out of my face. This escalated. The sheriff's officer told [defendant] to be seated and be quiet. That did not happen. And the next thing I observed from the bench was that the defendant and the sheriff's officer were physically interacting with each other. The [t]one of the voice and the agitation w[ere] rapidly escalating.

 

At this point the witness, who is also a sheriff's officer, he was the complaining witness, intervened in an attempt to have [defendant] calm down, sit down and be quiet so that the order of the trial could be continued. At that point a full fledged brawl started. The officers tried to restrain [defendant]. [He] resisted. Wrestling started to control [defendant]. Chairs started flying. Benches were being knocked over. And at that point I pushed the emergency button on the bench and . . . left the bench. . . .

 

Shortly thereafter I observed from my office several other sheriff's officers enter the courtroom to assist in subduing [defendant].

 

During the contempt proceeding, defendant apologized to the judge stating that "prior to coming to . . . [c]ourt today, [he was] disturbed at the issuance of the . . . ticket[,]" adding that he "tend[s] to be an emotional person."

On December 16, 2002, defendant pled guilty to one count of third-degree assault on a sheriff's officer; the State recommended a non-custodial sentence and dismissal of the other two counts. Defendant testified that he was forty-eight years old, a certified public accountant with a degree from Columbia University, and had no prior criminal history. He stated he was voluntarily entering his guilty plea and gave a factual basis in which he admitted striking a sheriff's officer as he was being taken out of the courtroom on June 12, 2002.

On February 14, 2003, defendant was sentenced to a one-year term of probation conditioned upon his attending anger management counseling. At the hearing, defendant's attorney told the judge that "throughout all of these years, [defendant has] never had a problem until this arose," adding that defendant is "a youngster who grew up in a very difficult community, he has no problems."

The pre-sentence report (PSR) included defendant's statement to the probation officer preparing the report that "he has never been hospitalized with any serious illness or injury . . . [and] further state[d] that he has never been under the care of a mental health official." Defendant described his "overall health" as "excellent." The PSR contained the probation officer's observation that defendant "admitted . . . that he did not want to be present for the . . . interview and was clearly upset and angry at the nature of the questions posed to him." This led the officer to "certainly agree[] with the need for anger management for [defendant]. His anger, for whatever reason, was clearly visible to this officer." Defendant made no comment on these portions of the PSR at sentencing.

Sometime in April 2003, defendant was charged with violating his probation for failing to (1) attend anger management counseling and (2) verify his employment. The violation report noted that defendant is "highly volatile and hostile[,]" and "does not appear willing to take responsibility for the actions that brought him here, rather he chooses to project his internal anger towards this [o]fficer as well as others in this judiciary process." On May 29, 2003, defendant was sentenced to 250 days in the county jail.

On July 2, 2009, defendant filed a PCR petition claiming ineffective assistance of counsel, and a motion to withdraw his guilty plea. He submitted a psychological evaluation conducted by Paul M. Brala, Ph.D., on August 11, 2008. Brala referred defendant to Susan C. Kemler, Ed.D. for an evaluation with respect to adult learning disabilities, and incorporated Kemler's opinions into his report.

Based on testing, Kemler's evaluation, and his interview with defendant, Brala concluded that defendant "is an anxious and moderately depressed and despondent man who suffers from sad moods and worrying as well as some loss of initiative and feelings of professional inadequacy." Defendant "has extraordinary sensitivity to perceived hostile motives in others. If he believes he is being mistreated, . . . he has a very strong tendency to become angry and defend himself."

Kemler had concluded that defendant has "a learning disability with . . . significant difficulties in comprehension-knowledge and oral language." This led Brala to opine that at the June 12, 2002 municipal court hearing, defendant's "impulsivity (more frequently seen in individuals with diagnoses of attention problems and learning disabilities) combined with his receptive and expressive language problems . . . produce[d] misinterpretation, misunderstanding, failure to communicate effectively, and reactivity that went well out of bounds."

Brala concluded that "[a]n overall diagnosis of learning disorder/dyslexia with obsessive and compulsive features, and situationally based anxious depression, is appropriate." In sum, Brala stated that it was his "professional opinion that [defendant's] disability contributed directly to the poor and ineffective communication between himself and the officers as the stressful situation of his moving violation escalated, and between himself and all relevant parties as his pro se appearance in court deteriorated into a physical brawl."

In denying defendant's PCR petition, the judge found that "the consequences . . . and the circumstance of the learning disabilities that he faces with respect to the diagnosis" in Brala's report, "do not constitute circumstances under [N.J.S.A.] 2C:4-2 for purposes of diminished capacity." Rather, the judge concluded, "[i]t lends itself more to a circumstance of somebody who needs anger management counseling for purposes of behavior, which lends itself more to mitigating factors in terms of . . . sentencing, not in terms of diminished capacity."

The judge further concluded that "even if [Brala's report] existed" in 2002, it would not "have lent itself to enough to determine whether . . . [d]efendant could have a defense of diminished capacity." Therefore, the judge found that defendant had failed to make a prima facie showing of ineffective assistance of counsel on this basis.

The judge denied defendant's motion to vacate his plea finding that the "reasons for withdrawal" were "basically tacked into what the PCR argument [wa]s" and there was no "colorable claim that was viable for diminished capacity . . . . [I]t wasn't offered to him because the [defense] attorney was schooled enough to know that it didn't apply."

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

Point I Appellant Was Denied Effective Assistance of Counsel

I. Pertinent Facts

a. The Indications of a Mental Defect Pre-Plea

b. The Examination and Report

II. The Roots Of The Right To Effective Counsel And The Applicable Standard Of Review

a. The Standards Set Forth in Cronic And Strickland

b. Counsel's Responsibility To The Accused

c. Preparedness Of Counsel Is The Linchpin

1. Consultations With The Accused

2. Legal Research

III. Counsel Was Clearly Ineffective

 

Point II The Court Must Permit Appellant To Withdraw His Plea of Guilty

I. Applicable Law

A. The General Concept

B. Timeliness

C. The Plea Is Involuntary

 

Having reviewed these contentions in light of the record and the controlling legal principles, we discern no reversible error in the reasoning and conclusions set forth in the decision rendered by Judge Donald R. Venezia from the bench at the conclusion of the PCR hearing.

Defendant's position is based primarily upon the August 11, 2008 report of Dr. Brala, which, defendant asserts, contains analysis and opinions that should have alerted his attorney in 2002 to assert a diminished capacity defense on his behalf. We disagree. Brala's opinions do not support such a defense.

The defense of "diminished capacity" is defined in N.J.S.A. 2C:4-2 as follows:

Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

 

Diminished capacity "is a 'failure of proof' defense: evidence of defendant's mental illness or defect serves to negate the mens rea element of the crime. This . . . defense . . . allow[s] criminal defendants to introduce evidence relating to the impact of mental disease or defect on their state of mind." State v. Reyes, 140 N.J. 344, 354-55 (1995) (internal citations omitted).

In Reyes, the defendant asserted a diminished capacity defense to murder and related offenses; he presented psychiatric evidence that "'he was depressed[,] . . . under the influence of intoxicants and . . . his judgment was impaired.'" Id. at 362. His expert psychiatrist "testified to defendant's rage, to [his] explosive and emotional personality, and . . . asserted intoxication on the night of the murder." Id. at 363. On cross-examination, however, the doctor "indicated that defendant neither showed signs of underlying organic brain disorder, nor had any prior history of psychiatric disorders." Ibid.

On this record, the Court concluded that the defendant was not entitled to a jury charge on diminished capacity. Id. at 361. The Court noted that the defendant "was possessed of a violent, explosive personality, and he might have been depressed . . . . However, defendant was never diagnosed as suffering from some type of underlying mental disease or disorder. . . . In fact, . . . defendant had no underlying mental disorder at all." Id. at 365.

We are satisfied the same situation exists here. Dr. Kemler, an educational psychologist, diagnosed defendant with a language-based learning disorder. Dr. Brala opined that "learning disability symptoms are commonly exacerbated under stress." The heart of Brala's report is the following:

Thus, [defendant's] processing difficulties contribute directly to his being involved in situations in which he becomes confused by the discrepancy between his (faulty) view and that of others in the same situation. This appears to have contributed directly to his mishandling of the traffic stop and to his reacting as he did during his court appearance for this offense.

[(Emphasis added).]

 

As noted earlier, the entirety of Brala's "professional opinion" was that defendant's "disability contributed directly to the poor and ineffective communication between himself and the officers. . . ." (Emphasis added).

Nowhere in his report did Brala diagnose defendant with a "mental disease or defect." In fact, he noted that defendant "shows no evidence of the type of disordered thought process or content seen in psychosis or other major mental illness[.]" It was because defendant's "cognitive processing and expressive style appeared sufficiently anomalous that referral to Dr. Kemler was made." Clearly, Brala's focus was on defendant's learning disabilities and the effect such disabilities had on his personality and behavior.

Not every mental condition qualifies under N.J.S.A. 2C:4-2 as a "disease or defect which would negate a state of mind which is an element of the offense." The condition must pertain to the existence or nonexistence of a state of mind prescribed by the code. Thus, a condition which results in uncontrollable rage or lack of control would not, by itself, negate a requisite mental condition such as knowledge or purpose. "[M]any mentally disturbed persons are [quite] capable of acting purposefully or knowingly in the minimal sense intended by" the statute.

 

[State v. Nataluk, 316 N.J. Super. 336, 344 (App. Div. 1998) (quoting Reyes, supra, 140 N.J. at 360).]

 

In State v. Galloway, 133 N.J. 631 (1993), the Court recognized that

all mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished-capacity defense if the record shows that experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties, and the record contains evidence that the claimed deficiency did affect the defendant's cognitive capacity to form the mental state necessary for the commission of the crime.

 

[Id. at 647-47.]

 

Defendant pled guilty to third-degree aggravated assault, which is defined in N.J.S.A. 2C:12-1(b)(5)(a) as "[c]ommit[ting] a simple assault . . . upon . . . [a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer[.]" The definition of "simple assault" pertinent to defendant's charge is "[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1).

The "simple assault" element of N.J.S.A. 2C:12-1(b)(5) thus encompasses three alternate states of mind, "purposely, knowingly or recklessly caus[ing] bodily injury to another. N.J.S.A. 2C:12-1(a)(1).

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or cause such a result. . . .

 

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. . . .

 

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

 

[N.J.S.A. 2C:2-2(b)(1) - (3).]

 

The third count in defendant's indictment charged him with resisting arrest under N.J.S.A. 2C:29-2a(3)(a), which proscribes "purposely prevent[ing] or attempt[ing] to prevent a law enforcement officer from effecting an arrest . . . [by] us[ing] or threaten[ing] to use physical force or violence against the law enforcement officer . . . ."

The fact that defendant's learning disability contributed to his "impulsivity" which, in turn, stemmed from his "poor and ineffective communication" with the sheriff's officers, as Brala opined, did not render defendant incapable of acting purposely, knowingly or recklessly; nor did Brala render a "professional opinion" on this subject. Like the defendant in Reyes, supra, defendant here "was possessed of a violent, explosive personality," as a result of his learning disability, but was "never diagnosed as suffering from some type of underlying mental disease or disorder." 140 N.J. at 365.

Defendant's reliance upon State v. Sexton, 311 N.J. Super. 70 (App. Div. 1998), aff'd, 160 N.J. 93 (1999), as "particularly apposite" to his argument, is misplaced. There the defendant, who was fifteen years old at the time of the murder with which he was charged, 311 N.J. Super. at 73, proffered "extensive psychological expert testimony" at his waiver hearing with respect to his classification as a special education student with "'limited mental ability.'" Id. at 88. He chose not to raise a diminished capacity defense at trial, ibid., and was convicted of reckless manslaughter. Id. at 73. We reversed that conviction for error in the jury charge; in so doing, we determined that the expert evidence might be "potentially relevant to the reasonableness of his" claim at trial that he did not know the gun, the murder weapon, was loaded, and, therefore, "relevant to the presence or absence of the requisite reckless state of mind." Id. at 88. Both the nature of the expert evidence of record, and the purpose for which we deemed it relevant on remand in Sexton, are distinctly different from the record in this case.

We are satisfied that defendant failed to produce evidence that would have supported a diminished capacity defense in 2002 under N.J.S.A. 2C:4-2. As this was the entire basis for his claim of ineffective assistance of counsel, the PCR judge properly found that he had failed to make a prima facie showing of any such ineffectiveness.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show 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." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Having failed to make such a showing, defendant was not entitled to a plenary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

As defendant's motion to withdraw his plea was likewise based on his unsuccessful proffer of a viable diminished capacity defense, we are satisfied the judge properly denied that motion as well. We note that defendant also asserted a claim of innocence, but the judge rejected that claim because there was no "colorable claim that was viable for diminished capacity."

Pursuant to Rule 3:21-1, a motion to withdraw a guilty plea after sentencing will only be permitted "to correct a manifest injustice." In State v. Slater, 198 N.J. 145 (2009), the Court identified four factors which must be weighed when considering a motion to withdraw a plea:

(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

 

[Id. at 157-58.]

 

Here, defendant's "colorable claim of innocence" flies in the face of the factual basis he voluntarily gave to the judge at the time of his plea. Defendant's primary reason "for withdrawal" is his assertion of a viable diminished capacity defense. Defendant obtained a very favorable plea bargain; he faced three third-degree charges, each carrying a maximum five-year term of imprisonment. He pled to one charge and received probation. Finally, his offenses occurred in 2002; although the record does not so reflect, we are confident that State would be hard-pressed to try this case nine years later.

In sum, we are satisfied that Judge Venezia's two decisions, denying PCR and the motion to withdraw the plea, are unassailable in all respects.

Affirmed.

1 The State has filed a cross-appeal from "the orders of . . . October 20, 2009, finding that defendant's petition for [PCR] was not timed barred." The October 20, 2009 order, however, is silent as to this issue. In his oral opinion from the bench on that date, the judge stated that he "d[id] not consider [the PCR petition] to be barred in [his] discretion[,]" and then proceeded to decide it on the merits. "[I]t is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, . . . or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). Thus, the State's appeal is not cognizable under Rule 2:2-3(a)(1). In any event, as we are affirming the denial of relief sought by defendant, the State's appeal is moot.

2 The "[u]nidentified" voice was later identified as that of sheriff's officer Ken Dyson.