STATE OF NEW JERSEY v. RONALD PITUCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4829-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD PITUCH,

Defendant-Appellant.

___________________________

February 7, 2014

Submitted January 7, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-07-0751.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronald Pituch appeals from a December 30, 2011 order denying his petition for post-conviction relief (PCR). By order filed on May 24, 2013, we remanded this matter to the PCR judge to issue a statement of reasons for that decision. The judge issued a written opinion on August 30, 2013, and thereafter, the parties filed supplemental briefs on this appeal. Having reviewed the record including the supplemental briefs, we now affirm, substantially for the reasons stated in the PCR judge's opinion.

Defendant was charged with first-degree murder for bludgeoning his mother to death with a barbell, and with first-degree capital murder for brutally stabbing to death a fourteen-year-old boy. Defendant's niece was an eyewitness to the grandmother's murder and made a statement to the police implicating defendant. Defendant also confessed to both killings. Due to defendant's history of mental illness, several doctors evaluated him to determine his competency to stand trial and to render opinions on a possible insanity defense. All four doctors who examined defendant opined that he was competent to stand trial and, specifically, that he was competent to waive the insanity defense if he chose to do so. Only one defense doctor opined that defendant met the standards for the insanity defense. Two doctors retained by the State opined that he did not meet the standards. Even defendant's expert psychiatrist opined that he was very dangerous and, if found not guilty by reason of insanity, would need to be psychiatrically hospitalized for an extended period of time.

Thereafter, on November 4, 2004, defendant entered into a plea agreement, pursuant to which the State would reduce the charges on each homicide and recommend a term less than life imprisonment. Pursuant to the agreement, defendant pled guilty to one count of aggravated manslaughter for killing his mother and one count of first-degree murder for killing the teenage boy. Prior to accepting the guilty plea, Judge Marvin Schlosser conducted an extensive and detailed voir dire of defendant concerning his mental state and his understanding that he was waiving the right to go to trial and raise the insanity defense. Defendant was sentenced on January 4, 2005, to an aggregate term of fifty years, consisting of thirty years without parole for first-degree murder of the teenager, consecutive to a term of twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for aggravated manslaughter in the killing of his mother. That sentence was the exact term provided in the plea agreement.

Defendant filed an appeal in 2006, which we dismissed as untimely. In January 2008, he filed a pro se PCR petition, claiming ineffective assistance of counsel. His assigned PCR attorney later filed a supplemental brief, contending that trial counsel coerced defendant into pleading guilty in lieu of presenting an allegedly viable insanity defense, that counsel failed to argue against consecutive sentencing, that counsel did not advise defendant of the penal consequences of his plea, and that the trial court erred in imposing consecutive terms.

In opposition to the PCR petition, the State filed a certification from Cedric Edwards, Esq., one of defendant's former trial attorneys.1 Edwards described in detail that he explained to defendant the advantages and disadvantages of accepting the plea agreement and the sentencing ramifications of the deal. Edwards stated that defendant fully understood the plea agreement and expressed to him that, among other reasons, he wished to plead guilty to spare his young niece from having to testify at the trial.

In his opinion after remand, the PCR judge (who had not been the trial judge) reviewed the transcript of the plea agreement and found that defendant pled guilty with a full understanding that he was waiving his right to present an insanity defense, after being evaluated by several psychiatrists and being found competent to stand trial. The PCR judge also noted that the State's psychiatrists found that although defendant was mentally ill at the time he committed the crimes, he "knew what he was doing" and knew he was committing a crime for which he could be punished. Hence, there was no certainty that defendant would be acquitted by reason of insanity if he went to trial.

The PCR judge found no indication that defendant was coerced into pleading guilty. To the contrary, the judge found that defendant's attorneys placed on the record their extensive counseling of defendant on the issue of whether to accept the plea offer. Likewise, the trial judge had reviewed the plea deal exhaustively with defendant on the record and defendant stated he understood that he was waiving the insanity defense and wished to plead guilty. The PCR judge concluded that defendant's PCR contentions were no more than "bald assertions" which did not entitle defendant to an evidentiary hearing. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).

On this appeal, defendant raises the following points for our consideration:

POINT ONE

THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW.

POINT TWO

MR. PITUCH IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS TRIAL ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

Except as discussed below, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant contends that, on remand, the PCR judge failed to address three of his arguments: his attorneys failed to communicate with him; his attorneys failed to inform him of the penal consequences of his plea; and his attorneys did not argue on his behalf at sentencing. Defendant also contends that his attorneys failed to discuss the case with him and that he did not understand that he had a viable insanity defense. He claims that, even though the trial judge thoroughly reviewed the case with him to be sure the plea was knowing and voluntary, "off the record" his attorneys were telling him that he should take the plea offer because he was likely to lose if he went to trial. He also argues that his attorneys "failed to inform him of the significance and consequence of a fifty year term."

We conclude that the PCR judge adequately addressed the first two issues and, in any event, the record does not support defendant's claims. Further, given the expert reports on both sides, we find no basis to second-guess his trial counsel's advice to defendant that he was unlikely to prevail on an insanity defense. Given the brutality of both murders, defendant was fortunate to avoid exposure to the death penalty and to escape a term of life imprisonment.

Defendant failed to present a prima facie case by demonstrating that his trial attorneys were ineffective in advising him, or mis-advising him, concerning the plea agreement, and that, had he received adequate legal representation he would have refused to plead guilty and instead would have insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 453 (1994). As a result, defendant was not entitled to an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Although the PCR judge did not specifically address the sentencing issue, we find that defendant's trial attorneys did present arguments to the sentencing judge concerning mitigating factors, including defendant's mental illness, and the sentencing court appropriately addressed the mitigating and aggravating factors. Although defendant's attorneys did not argue for concurrent sentencing, we conclude that such an argument would have been unsuccessful, verging on frivolous. Defendant brutally killed two victims, at separate times and places. Under those circumstances, the imposition of concurrent sentences would have violated the principle that there are to be "no free crimes" and would have constituted a gross miscarriage of justice. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

1 Throughout the trial proceedings, defendant was represented by two attorneys, Cedric Edwards and Michael Riley.