STATE OF NEW JERSEY v. JAMIE WALLACE

 

NOT FOR PUBLICATION WITHOUT THE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.

JAMIE WALLACE,

Defendant-Appellant.

_____________________________________

Submitted May 2, 2016 Decided May 11, 2016

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0620.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jamie Wallace appeals from an order denying his petition for post-conviction relief (PCR). He presents the following arguments for our consideration

POINT I.

TRIAL COUNSEL'S DEFICIENT PERFORMANCE MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTIONS AND SENTENCES.

A. Trial Counsel Failed To Investigate And Present Viable Mens Rea Defenses.

1. Extreme Intoxication.

2. Diminished Capacity.

3. Insanity Defense.

B. Trial Counsel[] Provided Ineffective Assistance Of Counsel Because He Failed To Investigate Defendant's Competency When Sufficient Indicia Of Defendant's Incompetency Existed.

POINT II.

THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

We affirm.

In February 2009, a jury convicted defendant of three counts of robbery and two counts of resisting arrest. Two months later, the judge sentenced him to an aggregate extended term for repeat violent offenders of life imprisonment without parole, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed his conviction and sentence on direct appeal, State v. Wallace, No. A-5710-08 (App. Div. July 13, 2012). The Supreme Court denied certification. State v. Wallace, 213 N.J. 45 (2013).

Three months after the Supreme Court denied certification, defendant filed a PCR petition. In a supporting certification, he stated he had been indicted for allegedly robbing three Wawa convenience stores in Vineland. He further averred

At the time of my arrest, I was heavily addicted to drugs. At the time of the commission of these offenses I was high on PCP.

My drug addiction was such that all I thought about was getting money to purchase more drugs. I did not understand that my actions could result in a life sentence.

It was never my intention to hurt anyone or even to cause anyone to be afraid. I only wanted money to purchase more drugs. I was not and could not think clearly because of my drug addiction.

I believe that my trial counsel should have had me evaluated by a mental health/substance abuse professional. I believe that my ability to make rational, reasonable decisions was diminished by the drug abuse. I believe I had a viable defense and that I would have been offered a much lighter sentence.

I also did not understand that I was facing a life sentence if convicted. If I have [sic] understood that I would have accepted any offer from the State that did not include a life sentence.

Following briefing and the filing of supplemental submissions by defendant's attorney, Judge Cristen D'Arrigo conducted argument on September 23, 2014. Defendant contended he was entitled to an evidentiary hearing on his ineffective-assistance claim. He argued, among other things, "diminished capacity, insanity defense, as well as intoxication defense." Defendant also argued "that his drug use at the time created a mental illness that would have affected his ability to have this specific intent that was required by the statute."

In support of these defenses, defendant emphasized his certification, in which he claimed to be heavily addicted to drugs and high on PCP when he committed the offenses. He also noted that, when arrested, he told the officers: "You've got me. I'm addicted to drugs. . . . What else could I do?"

The judge denied defendant's petition without an evidentiary hearing. Judge D'Arrigo explained that trial counsel's non-pursuit of a diminished capacity defense appeared to be strategic, defense counsel having asserted at trial defendant was not the perpetrator. The judge noted a diminished capacity defense would have required defendant to admit he was the perpetrator. Such an admission would have been inconsistent with a mistaken-identity defense.

Additionally, the judge explained

There's been no assertion that anything within the record would have supported a claim that the defendant, at the time of the incident, was under the influence of a controlled substance, or alcohol, and was in such an impaired condition that he did not understand the gravity of, or the nature of his conduct.

There's simply nothing there. As a matter of fact, a review of the record, as it was presented to the [c]ourt here, demonstrates, not only was the defendant functioning on a on a reasonable level that he could understand what he was doing. It shows planning, and it shows that he was aware of what issues were facing him.

He allowed others to go in front of him, [in] order to limit the number of witnesses, or individuals he would have to deal with if there [were] any other persons in the store at the time.

He made suggestive movements, implying that he had a weapon, in order to trick or deceive the cashiers, that he was armed at the time. Those things are not done by a person who does not have an understanding of what they re doing. There was simply no evidence to suggest that he was incapacitated in that way.

And, to the extent that he made statements that he was performing these robberies because he was drug addicted, was simply a statement of motive, a statement of why he's

doing it. He needs money for more drugs. That's why he's perpetrating these offenses.

That's a completely different statement than, "I had no idea what I was doing; I am completely out of my mind." And, a person who was in that kind of state wouldn't even make a statement like that.

And, since there was no evidence presented from the police reports at the time he was apprehended that show that he was incapacitated, or that he was severely under the influence of some substance that was impairing his functionability, I I don't see anything that would cause this [c]ourt to determine the decisions made by [t]rial [c]ounsel, to pursue or not pursue, an incapacity defense, would rise to the level that it would have denied the defendant a fair trial.

Defendant appealed from the memorializing order.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima facie claim of ineffective assistance of counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).

A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In other words, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Matters falling under the purview of "trial strategy" do not support a claim of ineffective assistance of counsel. Fritz, supra, 105 N.J. at 54.

Considering defendant's arguments under these standards, we conclude Judge D'Arrigo correctly denied defendant an evidentiary hearing on his PCR petition. Defendant's PCR petition is based on nothing more than his own self-serving, unsupported assertions he was heavily addicted to drugs, high on PCP, and not thinking clearly when he committed the robberies. These unsupported assertions are inadequate to support the defenses he now advances.

Defendant asserts his trial counsel should have investigated an intoxication defense. Self-induced intoxication can negate an element of an offense if "the intoxication [is] of an extremely high level." State v. Cameron, 104 N.J. 42, 54 (1986). The level of intoxication must be to a degree that causes "prostration of faculties such that defendant was rendered incapable of forming an intent." Ibid. (citing State v. Treficanto, 106 N.J.L. 344, 352 (1929)).

[S]ome of the factors pertinent to the determination of intoxication sufficient to satisfy the test of "prostration of faculties" . . . are the following: the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.

[Id. at 56.]

Here, defendant did not explain how much PCP he used, how long he had used it, or when he last used it before committing the crimes. Instead, he merely asserted he was high on PCP when he committed the robberies and not thinking clearly. These assertions are inadequate to establish the requisite high level of intoxication or its equivalent.

Similarly, defendant's declaration his drug addiction "was such that all I thought about was getting money to purchase more drugs" is a statement of motive, which Judge D'Arrigo correctly recognized, rather than proof of a mental disease or defect needed to establish a diminished-capacity defense. Significantly, defendant has provided no expert report diagnosing any underlying mental disease or defect. A diminished-capacity defense requires "[e]vidence that the defendant suffered from a mental disease or defect . . . to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2; see also State v. Reyes, 140 N.J. 344, 365 (1995) (explaining the defendant's possession "of a violent, explosive personality" and his possible depression, combined with voluntary ingestion of intoxicants, were insufficient to establish diminished capacity absent "any underlying mental deficiency"); State v. L.C., 283 N.J. Super. 441, 448 (App. Div. 1995) (noting Reyes requires an identifiable disorder), certif. denied, 143 N.J. 325 (1996).

Defendant has offered no evidence to support his claim that trial counsel should have pursued an insanity defense or investigated defendant's competency. Moreover, defendant has not so much as expressed a disagreement with his trial counsel's strategy to pursue a misidentification defense. His arguments concerning an insanity defense and his competency are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant failed to establish a prima facie case of ineffective assistance of counsel. Judge D'Arrigo correctly denied defendant an evidentiary hearing.

Affirmed.