STATE OF NEW JERSEY v. RONNIE BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2089-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNIE BETHEA,

Defendant-Appellant.

________________________________________________________________

Submitted May 3, 2011 Decided June 28, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0724.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm the denial of his petition, substantially for the reasons set forth by Judge Ernest M. Caposela, J.S.C., in his written opinion.

Defendant pled guilty to one count of first-degree armed robbery, N.J.S.A.2C:15-1, and one count of second-degree armed robbery, N.J.S.A.2C:15-1, pursuant to a plea agreement. The sentencing court imposed an aggregate sentence of 12 years, subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2, on November 22, 2002.

Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. The Supreme Court denied his petition for certification. State v. Bethea, 185 N.J.36 (2005).

Defendant filed a PCR petition on August 25, 2005. An amended, verified petition was filed with the assistance of counsel on November 15, 2007, in which defendant argued he was denied the effective assistance of counsel because his attorney failed to adequately consult with him prior to his guilty plea, failed to provide him a copy of his discovery prior to the plea hearing, and failed to investigate the viability of an intoxication defense. Defendant asserted that, as a result of his attorney's failure to provide him with discovery, he did not "truly" understand the plea. Defendant's PCR counsel submitted a certification in which he stated that he "reasonably believe[d] that Bethea may have not been mentally competent to accept a plea agreement in this case at the time he did so."

In a detailed written opinion, Judge Caposela denied defendant's petition. Defendant presents the following issues for our consideration in his appeal.

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF. (NOT RAISED BELOW)

POINT II

THE LAW DIVISION JUDGE SHOULD HAVE GRANTED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATE[S] CONSTITUTION AND ARTICLE I, PARA. 10, OF THE NEW JERSEY CONSTITUTION

A. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCESS

B. DEFENDANT'S TRIAL COUNSEL FAILED TO INVESTIGATE THE ISSUES OF MENTAL COMPETENCY AND INTOXICATION

POINT III

THE LAW DIVISION JUDGE SHOULD HAVE GRANTED DEFENDANT A HEARING ON HIS PETITION FOR POST CONVICTION RELIEF

After carefully reviewing the record and briefs, we are satisfied that none of these arguments have merit.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also State v. Goodwin, 173 N.J. 583, 596 (2002). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall III, 148 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).

Defendant does not contend that he did not commit the robberies to which he pled guilty or that he lacked a factual basis for his guilty pleas but rather, that he did not "truly" understand the plea. In his written opinion, Judge Caposela stated the transcript of defendant's plea proceeding revealed that defendant asked for additional time to review the discovery. The judge offered him an opportunity to delay the plea proceeding to review the discovery. Defendant declined the invitation and elected to proceed under the negotiated plea agreement. Judge Caposela concluded that defendant's argument regarding whether his plea was knowing and voluntary failed to satisfy the second prong of the Strickland/Fritz test because he failed to show he suffered any prejudice.

Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." The absence of any supporting evidence was a compelling factor for Judge Caposela's rejection of defendant's remaining claims.

In addressing the contention that defendant was not mentally competent at the time of his guilty plea, Judge Caposela noted the failure to provide any psychological evaluation of defendant or other evidence of defendant's behavior to support the conclusory statements of counsel. He concluded the assertion lacked any merit.

Finally, as to defendant's claims regarding a possible intoxication defense, Judge Caposela noted the absence of any mention of intoxication in the record prior to defendant's November 2007 certification. Defendant provided no facts "beyond the bald assertion" he was intoxicated, failing to even identify the substance that caused his intoxication.

Although voluntary intoxication is a defense to a purposeful or knowing crime, N.J.S.A. 2C:2-8(a), the intoxication must be of "an extremely high level" to qualify as a defense. State v. Cameron, 104 N.J. 42, 54 (1986). "[A]n accused must show that he was so intoxicated that he did not have the intent to commit an offense[,] a state of affairs [that] will likely exist in very few cases." Ibid. (quoting State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman, J., concurring and dissenting). In Cameron, the Court identified the following factors as relevant to the issue:

the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.

[Id. at 56.]

As noted by Judge Caposela, defendant provided no facts relevant to any of these factors to support his contention that his attorney was ineffective in failing to pursue an intoxication defense.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.