STATE OF NEW JERSEY v. JUSTIN B. CANNARELLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5970-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUSTIN B. CANNARELLA,

Defendant-Appellant.

_______________________________

March 1, 2012

 

Submitted February 7, 2012 - Decided

 

Before Judges Carchman and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01499.

 

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

As part of a negotiated plea agreement, defendant Justin B. Cannarella pled guilty to third-degree terroristic threats, N.J.S.A. 2C:12-3a, and was sentenced in accordance with the plea agreement to a term of probation. In addition to abiding by the rules and regulations of probation, defendant was ordered to take his prescribed medication and attend counseling as a condition of probation. He was also ordered to be placed in a residential program.

In November 2005, before his placement in a residential facility, defendant entered a guilty plea to third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). Defendant was sentenced to the same probationary term as well as the same conditions of probation and residential placement previously ordered.

Defendant was thereafter charged with a violation of probation, but because no residential placement had been secured, the matter was adjourned for thirty days. At the expiration of that time period, no placement had been secured. Therefore, defendant's previous probationary sentence was revoked, and he was sentenced to a prison term of five years. Defendant did not appeal but instead filed a petition for post-conviction relief (PCR). The trial judge denied relief. Defendant appeals, and we now affirm.

In his PCR, defendant asserted that his counsel failed to "file and pursue a diminished capacity defense." On appeal, defendant raises the following issues:

 

POINT I

 

THE DEFENDANT'S PCR ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, ALTHOUGH RELYING ON THE ARGUMENT THAT THE DEFENDANT WAS MENTALLY UNABLE TO FORM THE INTENT TO COMMIT A PROBATION VIOLATION, HE FAILED TO INTRODUCE INTO EVIDENCE THE REPORT OBTAINED WITH RESPECT TO THE DEFENDANT'S MENTAL HEALTH.

 

POINT II

 

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE FAILED TO BE ADEQUATELY PREPARED TO PROFFER ANY PRETRIAL EVIDENCE THAT THE DEFENDANT'S MENTAL CONDITION WAS SUCH THAT HIS CONDUCT SHOULD HAVE BEEN EXCUSED.

 

POINT III

 

WHERE THE TRIAL COURT DOES NOT ADDRESS THE DEFENDANT PERSONALLY, THE GUILTY PLEA ENTERED TO A PROBATION VIOLATION SHOULD BE VACATED.

 

During his plea colloquy with the judge when he entered his plea of guilty to the aggravated assault, defendant responded to the judge's questions as follows:

Q: And I am given to understand that there is a physical, mental or emotional condition that you suffer from but that doesn't affect your ability to understand what I'm saying today, does it?

 

A: No, sir.

 

Q: Do you know if you have a formal diagnosis with any mental condition?

 

A: Yes, I do.

 

Q: What is that condition?

 

A: I got approximately five diagnoses.

 

Q: What are they?

 

A: Which is bipolar, ADHD, ADD, compulsive and impulsive (sic) conditions.

 

Q: All Right. And when you are taking your medication, the bipolar problem is not an issue, correct?

 

A: Well, it's reduced.

 

Q: But does that affect your ability to understand what is going on around you?

 

A: No, sir.

 

Q: You took your medication today?

 

A: Yes, sir.

 

Q: As prescribed to you by a doctor in the jail?

 

A: Yes, sir.

 

Q: You are clear in your mind about what is going on here today?

 

A: Yes.

 

Q: As a matter of fact, part of the reason you are clear in your mind is because you have spoken with [defense counsel]?

 

A: Yes.

 

Q: And Ms. Royster explained your rights to you?

 

A: Yes, sir.

 

Q: She went over the plea bargain with you?

 

A: Yes, sir.

 

Q: And any questions you had she answered to your satisfaction?

 

A: Yes, sir.

 

Q: Are you satisfied with the advice and services that have been provided on your behalf by your attorney today?

 

A: I sure am, sir.

 

Q: Are you willing to plead guilty and give up all those rights that I just went over with you?

 

A: Yes, sir.

 

Q: Are you doing so freely and voluntarily?

 

A: Yes.

 

Q: You are doing this on your own?

 

A: Yes.

 

Q: No one is forcing you to plead guilty?

 

A: No, certainly not.

 

Q: And part of the reason you are doing it is because you are guilty of the charges?

 

A: Absolutely.

 

Q: Now, I understand you are in custody in the Union County [J]ail?

 

A: Yes, sir.

 

Q: And at -- on September 17, 2005[,] you were in custody at that time?

 

A: Yes, sir.

 

Q: And this was in the City of Elizabeth and a correction officer - - you committed an assault upon a correction officer?

 

A: Correct.

 

Q: And the officer was in uniform?

 

A: Yes.

 

Q: And he was showing signs of his authority.

 

A: Yes, sir.

 

Q: And the assault that took place you committed some act that caused him bodily harm, correct?

 

A: Yes, sir.

 

Q: He had some pain or suffering as a result of what you did to him?

 

A: Yes, sir.

 

Q: Tell us what you did.

 

A: Well, it started when I resisted from fingerprinting - - and then when they were trying to put the cuffs on me, I guess there had to be some movement that I hit his eye and cut him.

 

Q: I am satisfied that you have knowingly and voluntarily waived your rights in this matter. I am satisfied that you are in fact guilty of the charges, you understand the consequences of pleading guilty.

 

The court stated, "[Y]our mental health history leads me to believe that while you don't have a defense to these issues, it is a factor that the [c]ourt has taken strongly into consideration . . ." The court placed petitioner on probation for three years, and, as a special condition of probation, defendant was to serve fifty-seven days in the Union County Jail.

We granted leave to defendant to supplement the record in support of his PCR with a report from Joel E. Morgan, Ph.D., who opined:

In consideration of Mr. Cannarella's documented extensive, life-long psychiatric history and poor problem solving ability, it is my professional opinion that, within a reasonable degree of scientific psychological certainty, Mr. Cannarella was experiencing diminished mental capacity at the time of his probation violation. In an individual with such an extensive psychiatric history, clearly beginning in childhood, he is limited in his ability to consider the consequences of his behavior prior to making decisions, control his impulses, choose alternative means of expression and action, and utilize foresight and reasoning. Furthermore, his thinking is unusual and paranoid. He does not possess adequate coping skills or a support system to assist in decision making. Regardless of a structured or unstructured setting, he refuses medication and even when medicated his behavior vacillates between cooperative and belligerent to aggressive and destructive. This is an individual with a long-standing and severe psychiatric disability.

 

While the report makes reference to "diminished mental capacity at the time of [defendant's] probation violation," the violations of probation were based on defendant's testing positive for marijuana and his failure to report. The trial judge concluded that "counsel was not objectively deficient for deciding not to pursue such a defense as such a defense would not have been viable."

The PCR trial judge performed the appropriate analysis to determine whether defendant met the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). This two-part test requires a defendant to demonstrate his attorney's performance was deficient, but also that there existed a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Ibid.

In State v. Fritz, 105 N.J. 42, 58 (1987), the New Jersey Supreme Court recognized that the Strickland test as defining the state constitutional guarantee of effective assistance of counsel. Simply stated, the Fritz Court held that a criminal defendant is entitled to the assistance of reasonably competent counsel, and that a defendant's constitutional right is violated if counsel's performance is so deficient so as to create a reasonable probability that the deficiencies materially contributed to the defendant's conviction. Fritz, supra, 105 N.J. at 58. See also State v. Echols, 199 N.J. 344, 357-58 (2009); State v. Castagna, 187 N.J. 293, 313-15 (2006) (reiterating the two-prong standard enunciated in Strickland and followed in Fritz).

We have carefully reviewed the record, and we conclude that the judge correctly denied defendant's PCR. We affirm substantially for the reasons set forth in Judge Mega's thorough and thoughtful written opinion of December 18, 2009.

Affirmed.