STATE OF NEW JERSEY v. DAVID MCGILL, JR

NOT FOR PUBLICATION WITHOUT THE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.

DAVID MCGILL, JR.,

Defendant-Appellant.

____________________________________________________

January 17, 2014

Submitted December 17, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-06-1323.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Stephanie L. Dugan, on the brief).

PER CURIAM

Defendant David McGill, Jr. appeals from the November 29, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

The record reveals that on June 1, 2005, a Monmouth County grand jury indicted defendant for second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree kidnapping, N.J.S.A. 2C:13-1(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b).

The charges stemmed from an incident whereby defendant and a co-defendant went to the home of the victim, Anthony Stone, pointed a sawed-off shotgun at Stone and demanded money. When Stone could only produce $60, the perpetrators drove Stone to an ATM to retrieve more money. Stone was unable to make a withdrawal from his empty account. He refused to get back into the car with defendant, and was able to escape.

Stone's report to the police eventually led to defendant's arrest. Three days after his arrest, defendant waived his Miranda1 rights and gave a statement to police. He confessed to the robbery and added that he did not "recall a lot of what happened, due to the fact that [he] was drinking and smoking weed."

Pursuant to a plea agreement, defendant pled guilty to first-degree armed robbery, and second-degree certain persons not to have a weapon. The remaining charges were dismissed. On March 10, 2006, the trial court sentenced defendant on the robbery count to sixteen years imprisonment, subject to eight-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. For the weapons charge, the trial court imposed a concurrent seven-year term.

On March 27, 2007, an excessive sentence panel affirmed defendant's sentence, finding it was not excessive and did not constitute an abuse of discretion. The Supreme Court denied certification. State v. McGill, 192 N.J. 293 (2007).

Defendant filed a pro se PCR petition on March 9, 2011, arguing that his trial counsel was ineffective by failing to (1) adequately consult with defendant prior to the plea agreement; (2) adequately investigate and present intoxication and diminished capacity defenses; and (3) challenge his alleged confession.

On November 29, 2011, after hearing argument, Judge Francis P. DeStefano entered an order denying defendant's PCR petition without an evidentiary hearing and rendered a comprehensive twelve-page written opinion setting forth his findings and conclusions. Judge DeStefano found that defendant failed to assert a prima facie case in support of his petition under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge further determined that defendant was not entitled to an evidentiary hearing because he could not demonstrate a likelihood that his claim would succeed on the merits.

First, the judge addressed defendant's claims relating to intoxication and incapacity defenses and the validity of his statement to police. The judge noted that defendant failed to provide any evidence to support his claim that he was highly intoxicated or under the influence of drugs on the date of the crime. Further, the judge noted that defendant failed to provide any evidence, such as a record of diagnosis or a record detailing his prescription medication history, to support his claim that he was "not on his meds" and thus incapacitated when the robbery occurred.

The judge also observed that defendant gave his formal statement to police three days after the arrest; thus, any claim that intoxication affected his statement was implausible. Additionally, the judge stated, defendant waived his Miranda rights, his statement to police was extremely detailed, defendant answered affirmatively when asked if his statement was "true and voluntary," and defendant was "clear and coherent" when he gave the statement, showing no signs of diminished capacity or intoxication.

Regarding defendant's claim that the police coerced him into giving a statement, the judge turned to defendant's statement, which revealed that defendant initiated the conversation with police stating that he "wanted to make it right and didn't want anyone else to get in trouble because they didn't do anything." Thus, the judge found, defendant's Fifth Amendment claims lacked merit, and as such, his attorney's failure to raise those claims "did not constitute conduct that was outside the wide range of professionally competent assistance." The judge added that because defendant could not show a likelihood of success on a suppression motion, he was not prejudiced by counsel's failure to raise it, and accordingly, defendant's claim failed under Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Next, Judge DeStefano addressed defendant's claim that counsel failed to adequately consult with him or investigate his case prior to his plea agreement. The judge reiterated that defendant failed to produce any evidence indicating that he was intoxicated or incapacitated at the time of the robbery or when he gave his statement to police, thus defendant's claim that trial counsel failed to adequately investigate these defenses were mere "bald assertions." The judge also noted that there was a voluntary confession, there was surveillance video of the defendant and the victim approaching the ATM, and the driver of the car that was used in the robbery implicated defendant. The judge found that based on the overwhelming evidence against defendant, trial counsel's negotiation of a plea agreement in order to avoid more severe consequences of going to trial was "not below the wide range of professionally competent assistance demanded of attorneys in criminal cases."

The judge also found that defendant failed to show a likelihood that "but for trial counsel's failure to review his case, he would have not pled guilty and insisted on going to trial." The judge pointed out that defendant never stated that he was innocent of the charges, and that the State's offer of sixteen years in exchange for a guilty plea was significantly lower than the maximum exposure of over seventy years that he faced had he gone to trial. The judge found that defendant "failed to present . . . any facts, other than his own assertions, that would indicate he would have not pled guilty had his trial counsel done a more thorough investigation." Thus, the judge found, defendant failed to establish a prima facie case under Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

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

POINT I: THE COURT SHOULD REVERSE THE ORDER DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S UNPROFESSIONAL ERRORS COMPELLED DEFENDANT TO PLEAD GUILTY.

A. Trial Counsel Failed to Investigate and Present Viable Mens Rea Defenses.

1. Extreme Intoxication.

2. Diminished Capacity.

B. Trial Counsel Failed to Challenge Defendant's Confession.

C. Trial Counsel Failed to Prepare and Consult with Defendant.

POINT II: THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" 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).

This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief and has demonstrated "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

We have carefully considered defendant's arguments in light of the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeStefano in his cogent November 29, 2011 written decision. We are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his trial counsel's performance was deficient or that it resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Additionally, defendant has not shown that had his attorney advised him differently, there was a reasonable probability that he would have refused to plead guilty and insisted on trial. See DiFrisco, supra, 137 N.J. at 457. Furthermore, defendant is not entitled to an evidentiary hearing as he has not demonstrated a reasonable likelihood of success on the merits. See Marshall, supra, 148 N.J. at 158.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)