STATE OF NEW JERSEY v. DOUGLASS ONION

NOT FOR PUBLICATION WITHOUT THE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.

DOUGLASS ONION,

Defendant-Appellant.

_________________________________

August 17, 2015

Submitted June 15, 2015 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-1395.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Douglass Onion appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On May 6, 2008, an Essex County Grand Jury indicted defendant on one count of first degree robbery, N.J.S.A. 2C:15-1. After the pretrial conference did not result in a negotiated plea agreement, the court cut off any further plea negotiations and scheduled the matter for trial on August 4, 2009, as required under Rule 3:9-3(g). On the scheduled trial date, defendant agreed to plead guilty to the single count of first degree robbery without a negotiated agreement with the State.

At the plea hearing, the trial judge addressed defendant directly to confirm he understood the ramifications of this decision and to ensure he was doing so voluntarily, without coercion, and with a clear mind

THE COURT: All right. This is the date of trial for this matter and I have been advised that Douglass Onion is pleading to the indictment.

[DEFENSE COUNSEL]: He has advised me that that's what he wishes to do, Judge.

THE COURT: All right. Swear him in.

(Whereupon, the defendant is sworn.)

THE COURT: Now, Douglass Onion, you understand that, as I have indicated to you earlier, that you are pleading to the indictment with no recommendation.

Is that correct?

DEFENDANT: Yes, sir.

. . . .

THE COURT: So just to be clear, has anyone made any promises or any inducements to get you to plead guilty?

DEFENDANT: No, sir.

THE COURT: Did anyone threaten or force you in any way to make you plead guilty?

DEFENDANT: No, sir.

. . . .

THE COURT: Are you currently taking any type of medication?

DEFENDANT: Yes, I am, your Honor.

THE COURT: What kind?

DEFENDANT: Dilantin, phenobarbital, and I don't know the name of the psychological medication, but it's a green and white pill that they give me.

[DEFENSE COUNSEL]: He has severe epilepsy, and most of this medication is for the treatment and control of his epilepsy.

THE COURT: How do those drugs affect your ability to think clearly and to understand everything that's going on here today?

DEFENDANT: At times they do, but right now I am not under the influence of my medication.

[THE COURT]:[1] So that you are thinking clearly and do understand everything that's going on?

DEFENDANT: Yes, I am.

THE COURT: All right. Now, are you currently under the influence of any other drugs or alcohol?

DEFENDANT: No, sir.

THE COURT: All right.

Defendant was forty-one years old at the time he pled guilty. He had completed one year of college, and was able to read and write in English. The judge reviewed with defendant the plea form defendant had completed with the assistance of his attorney; he confirmed defendant understood all of the questions in the plea form; and that he had provided the answers to those questions to his attorney who then wrote them down on the plea form. The judge also confirmed defendant was satisfied with the services and the advice provided by his attorney. After this preliminary part of the plea hearing was completed, defendant provided the following factual basis in support of his guilty plea to the crime of first degree robbery

[DEFENSE COUNSEL]: Douglass Onion, I'm going to direct your attention to December 5th of 2007 at about three p.m. At that time, were you in the area of Raymond Boulevard and McCarter Highway in Newark?

DEFENDANT: Yes, I was.

[DEFENSE COUNSEL]: Did you run across an individual who you later came to know her name is [S.W.], and did you attempt to take her purse from her, her pocketbook?

DEFENDANT: Yes, I did.

[DEFENSE COUNSEL]: She did not give you permission to take her pocketbook, did she?

DEFENDANT: No, she didn't.

[DEFENSE COUNSEL]: In fact, she didn't want to [sic] you take it from her, did she?

DEFENDANT: No, she didn't.

[DEFENSE COUNSEL]: And in order to attempt to take that, did you punch her in the face?

DEFENDANT: Yes, I did.

[DEFENSE COUNSEL]: And you became aware at some point in time that it knocked out two of her teeth; and she fell to the ground and it knocked out two of her teeth?

DEFENDANT: Yes, I did.

. . . .

THE COURT: And in doing so, you did intend to inflict serious bodily injury on her?

DEFENDANT: Yes.

The trial judge accepted defendant's plea and indicated on the record that defendant made a knowing voluntary decision to waive his right to a jury trial and plead guilty without any expectation of leniency from the court or the State.

The sentencing hearing took place on November 19, 2009. By that time, defendant had filed a pro se motion seeking to withdraw his guilty plea, alleging he did not have any recollection of having pled guilty as a side-effect of the medications he was taking at the time to treat his epilepsy. The sentencing judge (who was not the same judge who presided over the plea hearing) denied defendant's motion. After reviewing the transcript of the plea hearing, the sentencing judge found no basis to doubt defendant made a knowing, informed, and voluntary decision to plead guilty on August 4 2009, after having had the opportunity to discuss this matter with his attorney.

This prompted an angry reaction from defendant.2 The judge reviewed the Presentence Investigation Report and heard argument from defense counsel and the prosecutor with respect to the sentence. When asked by the judge if he had anything to say before he imposed the sentence, defendant answered, "I will not accept the sentence." The judge thereafter imposed a term of fifteen years imprisonment, subject to an eighty-five percent period of parole ineligibility and five years of parole supervision as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.

Defendant filed a direct appeal to this court challenging the length of his sentence under the summary proceeding available through Rule 2:9-11. After considering the arguments of counsel, we affirmed defendant's sentence. State v. Douglass Onion, No. A-5578-09 (App. Div. Dec. 15, 2010). On December 21, 2011, defendant filed this PCR petition claiming he received ineffective assistance of counsel on the date he pled guilty. Defendant claimed his defense counsel did not properly explain the charge against him, and because he was under the influence of the epilepsy medication he was taking at the time, he was not thinking clearly. In his certification submitted in support of his PCR petition, defendant claimed "[he] felt pressured by [his] attorney to plead guilty." Finally, he reiterated the claim he made at the sentencing hearing of having no recollection of "the events of my plea hearing."

Judge Thomas M. Moore was assigned to adjudicate defendant's PCR petition. After considering both the arguments of counsel and the legal standard for determining an ineffective assistance of counsel claim, Judge Moore denied the petition without conducting an evidentiary hearing. Judge Moore specifically noted defendant's lucid conduct at the plea hearing and the responsive answers he provided to the judge's questions. Judge Moore found this record belied defendant's claims of being disoriented and unable to comprehend the significance of what was occurring at the time

He was able to list his two medications, Dilantin and Phenobarbital, without any hesitation or trouble. Seems unlikely and illogical that he would be [able] to conduct himself in such a manner [] if he had been influenced to the point that he could no longer comprehend what [was being said].

As for the claims of undue pressure by [defense counsel] to plead guilty, the [c]ourt finds it significant on a couple of issues, as pointed out by [the prosecutor], this was a trial date. This was not [the] plea cutoff date. The parties were going to trial.

[Defense counsel], in the colloquy, actually spoke very, very little. Discussion was between the petitioner and the [c]ourt. She notified the [c]ourt that the petitioner wished to plead guilty, then, after that, petitioner answered all the questions from the [c]ourt without [defense counsel] interjecting or leading him.

Judge Moore did not find any rational basis to credit defendant's self-serving claims of being under the influence of medication at the time he decided to plead guilty. He also did not find sufficient grounds to conduct an evidentiary hearing because defendant had not established a prima facie case of ineffective assistance of counsel.

Defendant now appeals raising the following arguments

POINT ONE

THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL SANCTIONED AN UNKNOWING, INVOLUNTARY AND UNINTELLIGENT GUILTY PLEA.

POINT TWO

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We review a claim of ineffective assistance of counsel under the two-pronged test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must first demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

With these legal principles as our guide, we discern no rational basis to disturb Judge Moore's findings and ultimate conclusion. Defendant did not establish a prima facie case of ineffective assistance of counsel. The record also supports Judge Moore s ruling finding defendant made a knowing and voluntary decision to plead guilty without any coercion or undue influence from defense counsel. We thus affirm substantially for the reasons expressed by Judge Moore in his oral decision delivered from the bench on August 12, 2013.

Affirmed.

1 Although the transcript of the plea hearing attributes this question to defendant, we are satisfied this was a clerical error. We have corrected the record to show the trial judge was the individual who asked defendant this question.

2 The record shows defendant turned his back to the trial judge and used expletives to express his disaffection with the judge s ruling to deny his motion to withdraw his guilty plea.