STATE OF NEW JERSEY v. DONALD HETRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD HETRICK,

Defendant-Appellant.

December 8, 2016

Submitted November 10, 2016 Decided

 
Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-09-0811.

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

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Donald Hetrick, appeals from a June 25, 2015 Law Division order denying his petition for post-conviction relief (PCR) based on ineffective assistance of counsel. He contends he was entitled to an evidentiary hearing. We affirm, concluding that he failed to establish a prima facie case.

Defendant, after a competency hearing, entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He was sentenced on May 20, 2011, in accordance with the plea agreement, to a twenty-six-year state prison term subject to the No Early Release Act's eighty-five percent parole ineligibility. See N.J.S.A. 2C:43-7.2(a). Defendant did not file a direct appeal.

According to the police reports submitted to the Law Division judge in support of defendant's petition, the discovery of the homicide began with defendant's arrest on February 18, 2009. On that date he entered a bar in Deptford Township, threatening patrons. When ejected by the bartender, he pulled a large silver knife and mumbled words, only one of which could be understood "death." After being charged, he was transported from the holding cell at the police station to a local hospital to be treated for a cut on his hand and a small abrasion to his head.

Defendant, who had a lengthy history of mental illness, called his mother from the jail. When she went to his apartment, she found it in disarray. Roland Webster, a neighbor and the victim, was lying on the floor in front of an open refrigerator, dead from multiple stab wounds. Police located a silver knife covered in Webster's blood, and a folding knife with defendant's blood.

From the outset, defendant has insisted he cannot remember anything about the confrontation with Webster. But in the certification in support of his PCR petition, he said he believed Webster had broken into his apartment and attacked him. He claimed he asked his attorney to investigate the matter, but that the attorney failed to do so. Contrary to the police report, in his certification defendant said only one knife was found on the scene and that it had his blood on it. He makes no mention of the encounter in the bar that led to his arrest or his mother's discovery of Webster's body.

In the certification, defendant also raises his second ineffective assistance of counsel claim. He asserts his attorney failed at sentencing to present "mitigation evidence." Defendant claimed his attorney failed to even advise him that he had the opportunity to do so.

Defendant acknowledged that he had been hospitalized many times for "depression, anxiety, and bipolar disorder." As of 1992, he was receiving Social Security disability benefits as a result of his illness. Defendant further stated that on the date of the stabbing he had taken his prescribed medications but relapsed into alcohol abuse. He "blacked out" that evening and remembered nothing until coming to in a jail cell. Defendant stated his prior convictions consisted of a driving while intoxicated, an indictable drug possession offense, "and a minor theft offense." He did not specify or describe the mitigating information his attorney should have brought to the sentencing judge's attention, although his attorney during oral argument raised mitigating factors four, five, seven, eight, nine, and ten. See N.J.S.A. 2C:44-1(b)(4), (5), (7) to (10).

The judge who decided the PCR petition observed that after his review of the record presented to him, given defendant's lack of recollection of the events, "there was nothing to suggest that [defendant] acted in self-defense." He also noted that in the plea colloquy, defendant's attorney thoroughly inquired as to defendant's understanding of the nature of his plea. This included asking defendant if he was "satisfied that [he] caused [] Webster's death recklessly and under circumstances manifesting extreme indifference to his life?" to which defendant responded, "yes, I did."

With reference to the alleged passion/provocation, the judge noted there was absolutely no evidence that the incident occurred either in the heat of passion, "or that it was a result of adequate provocation . . . . [A] [p]ost [m]ortem [e]xamination [] showed fourteen stab wounds to the chest of the victim that ultimately caused his death. If this case was presented to a jury, there is a strong probability that [d]efendant would have been convicted of [m]urder."

The judge found none of the mitigating factors argued by counsel would have been found to apply, as they were simply not supported by the record in any respect. Ultimately, the judge held defendant failed to establish even a prima facie case of ineffective assistance of counsel, and that the petition should therefore be denied.

Defendant now appeals, asserting this single point of error

MR. HETRICK IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

A court should grant an evidentiary hearing only "upon the establishment of a prima facie case in support of" PCR, and where the court determines "that there are material issues of disputed fact that cannot be resolved" on the existing record. R. 3:22-10(b). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." Ibid.; State v. Porter, 216 N.J. 343, 355 (2013); State v. Preciose, 129 N.J. 451, 462-63 (1992). "A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2).

To establish a prima facie case of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under an objective standard of reasonableness, and that the deficiency caused prejudice, or a result that would not have occurred had counsel been effective. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. DiFrisco, 137 N.J. 434, 457 (1994); State v. Fritz, 105 N.J. 42, 53 (1987). There is "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance" and amounted to sound trial strategy. Fritz, supra, 105 N.J. at 52 (citation omitted).

"[P]lea bargaining is a critical stage of the criminal proceedings at which the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div. 2002). The Strickland test has been applied "to challenges of guilty pleas based on ineffective assistance of counsel." DiFrisco, supra, 137 N.J. at 456. In order to establish an ineffective assistance of counsel claim during plea negotiations, defendant must prove that

(i) [C]ounsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and

(ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[Id. at 457 (internal quotations omitted).]

Even viewing the facts in the light most favorable to defendant, he has failed to demonstrate a prima facie case of ineffective assistance of counsel. Defendant's allegations are nothing more than vague speculation based on a mistaken understanding of the facts. For example, there were two knives at the scene, not one.

Defendant does not describe any anticipated benefit from additional investigation. He does not explain the reasons that but for his attorney's alleged errors, he would have insisted on going to trial. Thus, defendant has not established a prima facie case of ineffective assistance of counsel. His attorney's performance fell within the range of competent representation, and any deficiencies did not result in prejudice.

We agree with the judge that the record simply did not support any claim of additional mitigating factors. We rely on his findings on that score. We consider the claim to not warrant additional comment. See R. 2:11-3(e)(2).

Affirmed.