STATE OF NEW JERSEY v. BRIAN MAYER

NOT FOR PUBLICATION WITHOUT THE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.

BRIAN MAYER,

Defendant-Appellant.

_____________________________________________________

March 13, 2014

Submitted December 3, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0735.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Brian Mayer appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The record discloses the following relevant facts and procedural history.

In August 2005, when he was one month shy of his eighteenth birthday, defendant was charged with offenses which, if committed by an adult, constituted robbery in the first degree, N.J.S.A. 2C:15-1, and third-degree possession of a weapon with unlawful intent, N.J.S.A. 2C:39-4a. On the State's motion and after a hearing in the Family Part, the complaint was transferred to the Law Division, and defendant subsequently was indicted for these and other offenses.

Pursuant to a plea agreement, defendant pled guilty to first-degree robbery. The State agreed to dismiss the remaining counts of the indictment and recommend a twelve-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced on November 17, 2006, to a term of ten years, the minimum custodial term for a first-degree offense, subject to the appropriate period of parole ineligibility under NERA. Defendant filed an appeal limited to the alleged excessiveness of his sentence. We affirmed defendant's sentence on December 26, 2009. See State v. Mayer, No. A-4050-08 (App. Div. Dec 29, 2009).

On February 5, 2010, defendant filed a pro se petition for PCR. Counsel was appointed and a hearing took place on May 6, 2011, before Judge James Den Uyl, who was not the Family Part judge who conducted the waiver hearing or the Law Division judge who accepted defendant's guilty plea and imposed sentence. PCR counsel argued trial counsel was ineffective at every stage of the proceedings because he: failed to argue that defendant's mental health history "would have supported his likelihood for rehabilitation in the juvenile system"; failed to take defendant's mental health history into account "when allowing him to plead guilty"; and failed "to argue [defendant's] mental illness as a mitigating factor at . . . sentence . . . ."

In support, defendant supplied the October 2006 psychiatric report of Dr. Daniel Greenfield, who had been retained by trial counsel, and other various medical reports. These revealed that defendant was hospitalized multiple times, beginning in 1997, when he was nine years old, for "violent aggressive behavior." Defendant was initially diagnosed with "Impulse Control Disorder, Oppositional/Defiant Disorder[,] Family/Child Problem and Learning Disorder[]," and a subsequent diagnosis of "Attention Deficit Hyperactivity Disorder" (ADHD) was added during the last hospitalization. The Division of Youth and Family Services (DYFS) became involved, and various prescription medications were recommended in addition to continued counseling. A 2002 Family Part placement resulted in a recommendation in March 2003 that defendant be discharged from the program because of "concerns over aggression and physically assaultive behavior, AWOLS, and dangerous community behavior . . . ." It was recommended that defendant be remanded "to detention" until DYFS located a more restrictive placement.

Dr. Greenfield's report included an assessment of defendant's entire medical and educational records, as well as the doctor's interview and testing of defendant. Dr. Greenfield diagnosed defendant with "Polysubstance Dependence, in institutional remission," ADHD, and "Cognitive Disorder Not Otherwise Specified." Notably, the "gist" of Dr. Greenfield's recommendations was "not to suggest exculpatory psychiatric/neuropsychiatric/addiction medicine factors for [defendant] in the context of the [pending] matter, but rather to emphasize his clinical psychiatric/neuropsychiatric/addiction medicine [sic] condition [and] also to emphasize his ongoing need for treatment and rehabilitation."

PCR counsel argued that given this extensive history, a psychiatric expert witness should have been called at the waiver hearing, defendant failed to understand the consequences of his guilty plea, the trial judge should have ordered a competency hearing after an independent psychiatric examination and various mitigating factors should have been asserted at sentencing. PCR counsel stated that defendant was "requesting resentencing."

In a comprehensive oral decision, Judge Den Uyl addressed these, as well as other, arguments defendant made in his pro se filing. The judge reviewed the extensive juvenile record of defendant that included twenty-four complaints, resulting in various probation dispositions, violations of those dispositions, and several juvenile custodial placements, including one that resulted from offenses committed while he was detained on this robbery complaint.

Judge Den Uyl noted that defendant was almost eighteen when the offense was committed, and that first-degree robbery was a "Chart One offense." Therefore, pursuant to N.J.S.A. 2A:4A-26, once the Family Part judge found probable cause for the complaints, he was required to grant the State's motion to transfer the complaints to the Law Division, and information regarding defendant's probability of rehabilitation would not have been relevant.

Judge Den Uyl also rejected defendant's claim that trial counsel failed to advise defendant of his right to testify at the waiver hearing. The judge noted that, given the strength of the State's case as to probable cause, there was no reason to call defendant as a witness, and, in any event, the outcome would not have been different.1

The judge also rejected defendant's claim of ineffective assistance of counsel at sentencing. He specifically noted that Dr. Greenfield's report, which synopsized defendant's extensive medical history, was supplied to the sentencing judge. Moreover, the judge noted that trial counsel urged the judge to consider the report in mitigation of sentence.

Judge Den Uyl also concluded that trial counsel did not render ineffective assistance at the plea hearing. He noted that Dr. Greenfield's report did not provide any support for a "diminished capacity defense," or that defendant "could not knowingly and voluntarily plead guilty." The judge also reviewed the transcript of defendant's guilty plea, and concluded he provided a factual basis that "satisfied all of the elements of first[-]degree robbery."

Judge Den Uyl denied defendant s petition, entering a confirming order on May 6, 2011. This appeal followed.

Before us, in a single point heading, defendant contends:

POINT I

AS TRIAL COUNSEL DID NOT RAISE PETITIONER'S HISTORY OF MENTAL ILLENESS AT ANY POINT DURING THE PROCEEDINGS, PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

Having considered this argument in light of the record and applicable legal standards, we affirm substantially for the reasons expressed in Judge Den Uyl's comprehensive oral opinion. We add only the following.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "To meet prong one, a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." Hess, supra, 207 N.J. at 147 (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

Pursuant to N.J.S.A. 2A:4A-26e, the State's motion for waiver "shall not be granted" "[i]f the juvenile can show that the probability of his rehabilitation . . . prior to . . . reaching the age of [nineteen] substantially outweighs the reasons for waiver . . . ." However, that provision "shall not apply" if the juvenile is "[sixteen] years of age or older" and is charged with certain offenses, including first-degree robbery. Ibid.; and see N.J.S.A. 2A:4A-26(a)(2) (enumerating offenses other than first-degree robbery); In re V.A., 212 N.J. 1, 10 (2012) (noting the 2000 amendments to the statute "eliminated the opportunity for a juvenile aged sixteen and over, who is charged with the most serious offenses, to demonstrate to the Family Court that he or she can be rehabilitated by the age of nineteen through programs available in the juvenile justice system and thereby defeat a waiver motion").

Thus, Judge Den Uyl correctly concluded that information regarding defendant's extensive mental health issues would have been insignificant to the waiver decision. Hence, trial counsel did not render ineffective assistance by failing to introduce such evidence at the waiver proceeding.

Defendant's remaining arguments regarding trial counsel's ineffective assistance at the plea hearing and at sentencing were adequately addressed by Judge Den Uyl. They lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 We note the State's argument in this regard that defendant supplied no information in his petition as to what his testimony would have been. We agree that because no such information was supplied, defendant failed to present a prima facie case of ineffective assistance of counsel at the waiver hearing with respect to this claim. State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.), certif. denied, 162 N.J. 199 (1999).