STATE OF NEW JERSEY v. IRVIN MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IRVIN MORALES,

Defendant-Appellant.

____________________________________

December 16, 2013

Submitted December 2, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 01-08-00292.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Laura L. Nazzaro, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Irvin Morales appeals from the February 3, 2006 judgment of conviction for felony murder, N.J.S.A. 2C:11-3(a)(3), pursuant to a guilty plea allocuted on November 28, 2005. We affirm.

I.

On August 23, 2001, Morales was indicted for first-degree murder, N.J.S.A.2C:11-3(a)(1) and (2) (count one); first-degree kidnapping, N.J.S.A.2C:13-1(b) (count two); first-degree felony murder, N.J.S.A.2C:11-(3)(a)(3) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.2C:39-4(a) (count four) for shooting and killing Linda M. Wilson. Specifically, it was the State's contention that after Wilson entered Morales's car in New York City on September 10, 2000, "Morales inflicted a gunshot wound to the chest area of the victim." Then, while the victim was still alive but drifting in and out of consciousness, Morales drove to Sparta, New Jersey, where he repeatedly shot the victim and left her to die on the roadway. Wilson's body was found three days later. Following several days of intensive police investigation, Morales was arrested on September 28, 2000, at his residence in Brooklyn.

On January 10, 2002, the State filed a notice of aggravating factors, seeking the death penalty pursuant to N.J.S.A.2C:11-3(c)(4)(f) ("the murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense") and N.J.S.A.2C:11-3(c)(4)(g) ("the murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit . . . kidnapping).1 Thereafter, on May 13, 2002, the State filed an amended notice of aggravating factors, which added "Aggravated Assault (shooting of victim in New York) and/or Kidnapping" to its N.J.S.A.2C:11-3(c)(4)(f) aggravating factor.

In November 2003, Morales moved to dismiss the kidnapping and felony murder counts of the indictment. He argued that the victim was not confined against her will because she voluntarily entered Morales's car, and that any confinement subsequent to the first gunshot was simply an inherent part of the murder plot, not separately punishable by N.J.S.A.2C:13-1(b). The Law Division denied the motion, finding that the grand jury had sufficient evidence to conclude that the victim's lengthy post-gunshot confinement deprived her of medical treatment and enhanced her risk of harm. Furthermore, the confinement was found to be "separate and independent" of the later murder, which was facilitated by the kidnapping.

In February 2004, while incarcerated and awaiting trial, Morales exhibited signs of severe mental distress. On March 8, 2004, the Law Division entered an order mandating a psychiatric evaluation of Morales's fitness to proceed to trial.

On March 23, 2004, a psychologist, Christine Joseph, Ph.D., submitted a competency evaluation report opining that Morales "was clearly competent to stand trial and . . . he showed no evidence of cognitive limitations that would interfere in his participating adequately in his defense." The report cautioned, however, that Morales "made numerous statements to the effect that he will harm himself if given the opportunity and the possibility of acting out in a way that will be disruptive to a trial or his interactions with his attorney cannot be ruled out and close monitoring of his behavior is strongly recommended." A subsequent report of Dr. Joseph dated May 13, 2004, stated that there was "little change in [Morales's] mental or emotional state since last examined in March 2004."

A neuropsychologist, Joel E. Morgan, Ph.D., also completed a mental health evaluation of Morales in March 2004. Dr. Morgan observed that Morales "demonstrate[ed] moderately severe depression." Dr. Morgan diagnosed Morales as suffering from bipolar disorder and "other psychiatric disturbances, including substance abuse disorders, borderline and paranoid personality disorders, and probable post-traumatic stress disorder." As a result, Morales was said to experience "disturbances of cognition and emotions" and "abnormal brain structure and function is likely."

Roger M. Harris, M.D., performed an additional psychiatric evaluation of Morales. Regarding Morales's competency to stand trial, Dr. Harris found that

Mr. Morales understood the charges against him and the serious sanctions that can be leveled against him. He had a good understanding of the roles of individuals in the court and also understood the plea bargaining process. Mr. Morales did have some difficulty with his attorney's actions and felt that they were at cross-purposes at times. He felt that [defense counsel] did not follow all his leads and Mr. Morales has felt frustrated by this lack of action. Mr. Morales also views other court personnel with suspicion.

Based on his assessment, Dr. Harris concluded that Morales was competent to stand trial, but that he required immediate psychiatric treatment.

In June 2004, the Law Division conducted hearings on Morales's motion to be transferred to a psychiatric treatment facility pending trial. Defense counsel did not contest that Morales was competent to proceed at trial, but instead argued that Morales was "not being adequately treated by the Sussex County jail." Dr. Harris testified that Morales was competent to proceed, but Morales has "major depression" with a "borderline personality disorder[,]" and "a history of cocaine dependency and cannabis use." Dr. Harris opined that Morales was not receiving adequate care at the local jail because Morales's medication was not being monitored by a psychiatrist and he should have been evaluated daily by a psychiatrist or psychologist while on suicide watch. Furthermore, Dr. Harris was of the opinion that Morales "need[ed] to be transferred and treated in a dense psychiatric program for both his major depression and his borderline personality disorder."

Dr. Joseph testified that she had concerns that Morales was exaggerating his symptoms, probably because he wanted to be transferred from the jail. Dr. Joseph also opined that Morales was competent to stand trial, and that his needs were being addressed adequately at the jail, without the need for in-patient psychiatric treatment.

The Law Division found that Morales was competent to stand trial:

He understands the charges and the situation against him. He understands the role of the [j]udge, [p]rosecutor, and his attorneys. He understands the right to plea, and the consequences of that; as well as his right to go to trial and process. He understands the role of the jury and right to trial. And he is able to . . . participate in the presentation of his defense.

On June 14, 2004, the court entered an order, finding Morales competent to stand trial, denying his motion to be moved from the Sussex County jail, and ordering that Morales receive weekly psychiatric consultations and medication monitoring while on suicide watch at the facility.

One year later, on June 15, 2005, an additional hearing was held regarding concerns over the adequacy of Morales's mental health treatment at the jail. After considering the evidence, including several interim reports from mental health providers, the court found that "the jail has complied with the provision of [the June 14, 2004] order as it relates to . . . [e]nsuring that Mr. Morales since that time has received the psychiatric treatment." Nevertheless, the court permitted jail officials to transfer Morales to the Department of Corrections for further treatment, noting, "I don't believe at this point in time that there is any significant concern as to the ability of Mr. Morales to proceed toward trial with this transfer."

On November 28, 2005, Morales pled guilty, under oath, to felony murder (count three), pursuant to a plea agreement providing for a sentence not to exceed forty years with thirty years of parole ineligibility. During the plea colloquy, Morales testified that he understood his rights, he was satisfied with his lawyers' representation, he was aware of the potential penalty, and he had truthfully answered all the questions that were contained in the plea form. Morales then stated that he committed the crime of felony murder.

Relying on Rule3:9-2,2the court permitted the State to present a factual basis for the guilty plea. The prosecutor offered eighteen separately identified exhibits to the court, summarizing them as follows:

Those exhibits the State proffers show that on the afternoon of September 10, 2000, in the City of New York, that Mr. Morales inflicted a gunshot wound to the chest area, the upper chest area of the victim []; that he then confined her in his automobile and transported her into the State of New Jersey, specifically to the County of Sussex, Township of Sparta, where [the victim] was removed from the vehicle, and while at the Sparta location off of Route 15, in the Blue Heron Exchange area, that she suffered multiple gunshot wounds which caused her death in that location. And we submit that that evidence suffices for the charge to which Mr. Morales is pleading guilty, felony murder, a homicide committed during the course of a kidnapping. In terms of the unlawful confinement of [the victim], exposing her to serious bodily injury, and in fact, in this case, untimely death.

Upon the foundation of the exhibits and Morales's allocution, the court accepted the guilty plea.

On February 3, 2006, Morales appeared for sentencing. The sentencing court noted two potential problems: first, the Presentence Report indicated that Morales made a claim of innocence,3and, second, the court questioned the applicability of the 2001 amendments to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2.4

Morales agreed to waive an ex post facto challenge to being sentenced to a five-year period of parole supervision under the NERA. He also stated that he did not wish to withdraw the plea, and claimed that "some of [the Presentence Report] mischaracterized to some extent what [he] had actually said." The court sentenced Morales to thirty years incarceration subject to the NERA, with thirty years of parole ineligibility.

This appeal followed.

II.

On appeal, Morales presents the following issues for our consideration:

POINT I: THE CRIME OF KIDNAPPING WAS UNSUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THE CONFINEMENT WAS INCIDENTAL TO THE KILLING; THEREFORE DEFENDANT'S GUILTY PLEA TO FELONY MURDER PREMISED ON KIDNAPPING MUST BE VACATED.

POINT II: BECAUSE THERE WERE SIGNIFICANT CONCERNS ABOUT DEFENDANT'S MENTAL HEALTH AT THE TIME OF THE GUILTY PLEA, THE COURT'S FAILURE TO FURTHER INQUIRE INTO DEFENDANT'S COMPETENCY RENDERS THE GUILTY PLEA INVALID.

In addition, Morales's pro se supplemental brief argues the following:

POINT I: THE COURT ERRED IN FAILING TO REQUIRE DEFENDANT PROVIDE AN ADEQUATE FACTUAL BASIS FOR THE CRIMES, THEREBY DENYING HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A TRIAL BY JURY; THE PLEA SHOULD THEREFORE BE VACATED IN ALL RESPECTS. (Not Raised Below).

POINT II: IT WAS ERROR NOT TO CONDUCT A COMPETENCY HEARING PRIOR TO THE PLEA AND SENTENCING HEARINGS, THEREBY DENYING DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS. (Not Raised Below).

POINT III: DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS COMPROMISED BY INEFFECTIVE ASSISTANCE. (Not Raised Below).

POINT IV: IT WAS ERROR TO DENY DEFENDANT'S APPELLATE MOTIONS FOR THE ASSIGNMENT OF PUBLIC COUNSEL ON APPEAL AND FREE TRANSCRIPTS. (Not Raised Below).

POINT V: THE CUMULATIVE ERRORS IN THIS CASE MANDATE REVERSAL. (Not Raised Below).

Morales's first point argues that, because there was no evidence that the confinement here was anything other than an inherent part of the murder, the Law Division erred in denying Morales's motion to dismiss the kidnapping and felony murder charges, and therefore, the felony murder conviction should be vacated. We disagree.

The underlying offense that provided the predicate for felony murder, was kidnapping, which is defined as the following:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

. . . .

[N.J.S.A. 2C:13-1(b).]

Removal or confinement is unlawful "if it is accomplished by force, threat or deception . . . ." N.J.S.A. 2C:13-1(d). The New Jersey Supreme Court has long been concerned that "the State might misuse kidnapping as a bonus count in an indictment." State v. Jackson, 211 N.J. 394, 416 (2012) (internal quotation marks and citation omitted). Thus, "careful constraints [have been placed] on the prosecution of kidnapping offenses[.]" Ibid. Accordingly, the State must prove that the confinement under N.J.S.A. 2C:13-1(b) is more than "merely incidental to the underlying crimes." State v. La France, 117 N.J. 583, 590 (1990). The State may do so by showing qualitatively that the confinement increased the "dangerousness or undesirability of the defendant's behavior." Id. at 593 (internal quotation marks and citation omitted).

In the present case, the evidence overwhelmingly demonstrates that Morales's confinement of the victim, which occurred immediately upon the first gunshot, substantially enhanced her risk of harm. The victim willingly entered Morales's car in New York City, and was immediately shot once in the neck. While the victim was passing in and out of consciousness, Morales drove across northern New Jersey, eschewing any effort to get medical treatment for her. This conduct indubitably exposed the victim to a greater risk of harm that was qualitatively unlike the risks associated with the non-fatal first gunshot. Being rendered helpless and unable to seek assistance due to Morales's hours-long trek to Sussex County plainly made the decedent a kidnap victim. See Jackson, supra, 211 N.J. at 418-19 (finding "substantial confinement" where the defendant "imped[ed] [the victim's] ability to obtain assistance," which then enhanced his risk of harm by keeping him "isolated and vulnerable"). Here, the victim was confined in Morales's automobile for a significant amount of time, while severely injured, and isolated from the protections of society. She could not summon assistance to obtain help and treatment for the gunshot wound Morales inflicted in New York. Moreover, the victim's vulnerability and risk of harm increased each second she was confined to Morales's automobile. Accordingly, there was no basis to dismiss the kidnapping charge, and nothing impeded Morales's guilty plea to felony murder.

Morales next argues that "because there were significant concerns about defendant's mental health at the time of the guilty plea, the court's failure to further inquire into defendant's competency renders the guilty plea invalid." Again, we disagree.

A trial court may not accept a guilty plea without first determining that a defendant has "an understanding of the nature of the charge and consequences of the plea." R. 3:9-2. Similarly, "no person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." N.J.S.A. 2C:4-4.

Our review of the record makes it clear that Morales's guilty plea of November 28, 2005, was entered knowingly, voluntarily, and intelligently. Although there were legitimate concerns about Morales's mental health and ability to proceed in early 2004, Morales thereafter was evaluated by several appropriate experts who declared him competent to stand trial, and an evidentiary hearing also was held where Morales was found competent to participate in his defense.

Morales baldly argues that before accepting the guilty plea the Law Division should have more effectively questioned Morales's mental status. However, the sentencing judge (who also accepted the guilty plea sixty-seven days earlier) reviewed the expert reports, was aware of the ongoing treatment and Morales's grievances thereto, and acknowledged that Morales suffered from bipolar disorder and depression. The judge repeatedly asked if Morales understood the charges and the implications of his guilty plea. During the plea colloquy, Morales acknowledged that he had sufficient time to confer with his attorneys; to review and fully understand the indictment, discovery, and potential defenses; and that he was satisfied with his attorney's representation. The record is bereft of any evidence, much less anything approaching clear and convincing evidence, that Morales was incapable of proceeding. SeeState v. Harris, 181 N.J. 391, 458 (2004) (the standard for reviewing a court's decision not to order a competency hearing "is a strict one" and "failure to exercise the powers will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial") (citing State v. Lucas, 30 N.J. 37, 74 (1959)). Under this lens, we are satisfied that Morales failed to present any clear and convincing evidence that raised a "bona fide doubt" about his competency subsequent to the June 2004 competency determination, and therefore, there is no basis to vacate the plea or judgment of conviction. SeeState v. Spivey, 65 N.J. 21, 37 (1974).

In Morales's pro se supplemental brief, he raises a claim of ineffective assistance of counsel with respect to defense counsel's performance at the plea and sentencing proceedings. First, Morales argues that defense counsel "sat silent and permitted the prosecutor to adduce proofs of an adequate factual basis;" second "it was compulsive of defense counsel to file a motion to withdraw the plea" once the Presentence Report suggested that Morales denied involvement in the crime; and third, "[d]efense counsel was compelled to seek a reevaluation of [d]efendant for the purpose of establishing competency during" the plea and sentencing hearings.

To establish a prima facie claim of ineffective assistance of counsel, Morales must demonstrate a reasonable likelihood of meeting the two-prong test established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987): (1) that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment and (2) counsel's errors were sufficiently serious to deprive a defendant of a fair trial. Although such ineffective assistance claims are often reserved for applications for post-conviction relief because of their frequent dependence on matters outside the record, State v. Preciose, 129 N.J. 451, 461 (1992), we find that Morales's claims are properly cognizable on direct appeal in this case, because no evidence outside the trial record is required for resolution of the issues raised. State v. Howard, 383 N.J. Super. 538, 546 (App. Div.), certif. denied, 187 N.J. 80 (2006).

"Bald assertions" of ineffective assistance will not suffice; rather a defendant must allege specific acts or omissions that constitute deficient performance. State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007); State v. Pagan, 378 N.J. Super. 549, 557 (App. Div. 2005); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). To establish prejudice, Morales "must demonstrate 'how specific errors of counsel undermined the reliability' of the proceeding." Howard, supra, 383 N.J. Super. at 546 (quoting 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)). In other words, Morales "must provide a detailed exposition of how the trial lawyer fell short and . . . why the result would have been different had the lawyer's performance not been deficient." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).

We find no merit in Morales's claims of ineffective assistance of counsel largely because they are entirely speculative and conclusory. It is well to recall that at the time of the guilty plea, Morales was subject to a capital charge, with the potential for an extreme sanction. His unfocused grievances and unsupported allegations of defense counsel's passivity are belied by the record. There is nothing in the present record that suggests the satisfaction of either the performance or prejudice prong of Strickland.

To the extent that we have not addressed any of Morales's remaining arguments, it is because they are entirely meritless, R. 2:11-3(e)(2), or moot.

1 These aggravating factors became extraneous when our former death penalty complex was repealed on December 17, 2007. L. 2007, c. 204.

2 At the time of the plea hearing, in 2005, "[w]hen the defendant is charged with a crime punishable by death, no factual basis shall be required from the defendant before entry of a plea of guilty to a capital offense or to a lesser included offense, provided the court is satisfied from the proofs presented that there is a factual basis for the plea." R. 3:9-2. The death penalty was later abolished on December 17, 2007, see N.J.S.A. 2C:11-3; L. 2007, c. 204, but the Rule was never revised.

3 The Presentence Report stated that during Morales's videoconference interview, he "denied any involvement in the instant offense." The report further stated that "[t]he defendant went into a long diatribe about the police, the courts, and the 'Public Defender's Office' sticking this murder on him."

4 The NERA was made applicable to the crime of murder in June 2001, nine months after the present homicide.