STATE OF NEW JERSEY v. LORENZO ROSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5389-04T45389-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORENZO ROSS,

Defendant-Appellant.

______________________________________

 

Submitted July 10, 2007 - Decided August 30, 2007

Before Judges R.B. Coleman and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

Indictment No. 97-10-1411.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lorenzo Ross appeals from the April 29, 2005 order of the Law Division denying his post-conviction relief (PCR) motion on the grounds that defendant failed to make a prima facie case of ineffective assistance of counsel sufficient to warrant an evidentiary hearing and post-conviction relief. We affirm the trial court decision.

On October 23, 1997, defendant was charged in Indictment No. 1411-10-97 with one count of theft, contrary to N.J.S.A. 2C:20-7. Two months later, on December 16, 1997, a grand jury returned a sixteen-count indictment charging defendant with attempted murder, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a)(1) and (a)(2) (Count 1); kidnapping, in violation of N.J.S.A. 2C:13-1(b) (Count 2); aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a) (Counts 3, 4 and 5); sexual assault, in violation of N.J.S.A. 2C:14-2(c) (Count 6); aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3(a) (Count 7); criminal sexual contact, in violation of N.J.S.A. 2C:14-3(b) (Count 8); attempted armed robbery, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count 9); attempted robbery, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count 10); burglary, in violation of N.J.S.A. 2C:18-2 (Counts 11 and 12); aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (Count 13); aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (Count 14); terroristic threats, in violation of N.J.S.A. 2C:12-3 (Count 15); and possession of a weapon with the purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4(d) (Count 16).

Defendant initially pled not guilty to all of the offenses. However, on May 24, 1999, defendant withdrew his not guilty pleas to the first-degree kidnapping, first-degree aggravated sexual assault, first-degree attempted armed robbery and second-degree aggravated assault, and pled guilty to these offenses. Defendant also retracted his not guilty plea to the one count of receiving stolen property in Indictment 97-10-1411 and pled guilty to that offense as well.

At the time of his pleas, defendant was questioned under oath by defense counsel and the court as to the factual basis for the pleas, the voluntariness of the pleas, his understanding of the pleas, and the consequences of the pleas.

On January 30, 2000, defendant was sentenced to an aggregate thirty-year sentence with a fifteen-year parole disqualifier. Defendant filed a notice of appeal on August 30, 2002. The appeal was withdrawn on February 27, 2003, and an order dismissing the appeal was entered on February 28, 2003. Defendant's first post-conviction relief petition was denied by order dated April 24, 2003, but by order dated August 25, 2003, the court vacated its earlier order and ordered the appointment of counsel to represent defendant in connection with his PCR petition.

In his petition, defendant claimed he should be permitted to withdraw his guilty pleas because he was under the influence of two medications, Elavil and Haldol, at the time he entered his pleas and, consequently, they were not entered knowingly and voluntarily. He also claimed that defense counsel advised him to lie about his background, namely, to say that he had been sexually molested as a child, in order to receive treatment and a sentence to the Adult Diagnostic Treatment Center (ADTC) rather than to state prison. Defendant maintained that had he been free of the effects of the medication at the time he entered his guilty pleas, as he was at the time of the PCR petition, he would have never pled guilty to the charges and would have proceeded to trial on all of the offenses.

The court rejected the arguments and denied defendant PCR relief or an evidentiary hearing. The judge acknowledged that defendant submitted information about the side effects of Haldol and Elavil to support his claim that his pleas were not entered knowingly and voluntarily. The court reasoned that, although there was information disclosed that there are side effects to Elavil and Haldol, there was no evidence that defendant in fact suffered from those side effects at the time he entered the pleas. The judge noted that the record "confirmed that [defendant] understood the plea proceeding and he understood everything that his lawyer had explained to him about the charges." The judge also noted that at the time he entered the pleas, defendant specifically waived any issue related to diminished capacity. The judge concluded that there was "nothing to suggest that [defendant] did not understand any question that was posed to him except now for this assertion made in connection with this proceeding."

Additionally, although the judge rejected defendant's claim that his lawyer told him to lie about his background and doubted whether defendant could "pull the wool over" an experienced criminal trial judge and the staff at the ADTC, "whose job it is to treat people who are likely to re-offend," the judge observed that the sentencing judge did not consider prior sexual molestation as part of the court's consideration of aggravating and mitigating factors. Consequently, the judge concluded that defendant "failed to show how [defense counsel's deficient representation] caused him to be prejudiced in any way under Strickland [v. Washington]."

Defendant filed a timely appeal. He raises for our consideration, the following points:

POINT I

THE DEFENDANT WAS NOT MENTALLY COMPETENT TO ENTER INTO HIS GUILTY PLEA BECAUSE HE WAS UNDER THE INFLUENCE OF POWERFUL PRESCRIPTION MEDICATION USED TO TREAT SERIOUS PSYCHOLOGICAL DISORDERS.

POINT II

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL COUNSEL.

POINT III

THE TRIAL JUDGE SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.

The Sixth Amendment to the United States Constitution guarantees to every criminal defendant the right to the assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). Counsel retained or appointed to represent a defendant must "ensure that the trial is fair"; therefore, "the right to counsel is the right to the effective assistance of counsel." Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692. The New Jersey Constitution extends to a defendant the same right. N.J. Const. art. I, 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. First, a defendant must show that defense counsel's performance was deficient. Ibid. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this test. State v. Fritz, 105 N.J. 42, 57-58 (1987).

That defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" is presumed. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. What is not presumed is prejudice to a defendant as a result of a defense counsel's representation. Fritz, supra, 105 N.J. at 52.

The substance of defendant's argument is that he was under the influence of Elavil and Haldol, that his attorney was aware of his condition but did not bring this to the court's attention, nor did he, given defendant's condition, request a competency hearing, the sum total of which resulted in defendant pleading guilty to crimes under circumstances that were not knowingly and voluntarily given. Further, defendant, relying upon State v. Fisher, 132 N.J. Super. 313 (App. Div.), certif. denied, 68 N.J. 144 (1975), also argues that the monosyllabic responses to the court and defense counsel's questions demonstrates that defendant barely participated in the plea hearing and was otherwise in a stupor.

We agree with the PCR judge that the fact that Elavil and Haldol produce side effects does not mean that defendant was experiencing those side effects at the time he entered his pleas. Likewise, the monosyllabic answers given in this record are distinguishable from the circumstances present in Fisher, on which defendant relies. There the trial judge's inquiry was limited to telling the defendant the charges for which he was charged and asking the defendant whether he understood the nature of the offenses. The defendant simply responded "[y]es" to the questions. Although we found the responses unacceptable, we did not hold that monosyllabic responses were, as defendant suggests, per se insufficient. Rather, we said that a "'yes' - 'no' inquiry relating to the defendant's understanding of the nature of the offenses with which he is charged is not at all productive with respect to whether [the] defendant's understanding is in fact correct, an essential purpose of [Rule 3:9-2]." Id. at 315.

Here, defense counsel and the court engaged in lengthy questioning of defendant prior to the court's acceptance of defendant's guilty pleas. At one point during the questioning defendant indicated that he did not understand that after serving his sentence, he could face an involuntary civil commitment. The court re-explained the circumstances, after which defendant then indicated, with a "yes" response, that he understood that an involuntary civil commitment was a potential consequence following the completion of his custodial sentence. The court concluded that defendant understood the proceedings, that his plea was voluntary and that there was an adequate factual basis to support the plea. We defer to those factual findings. State v. Locurto, 157 N.J. 463, 471 (1999).

Defendant's remaining criticisms of his trial counsel are meritless. To the extent defendant claims his trial counsel failed to explain the consequences of a sentence to ADTC versus to state prison, the plea judge did. Although the ADTC report described defendant as a "severely disturbed, intellectually limited, violent, psychopathic individual, who remains at high risk for sexual and other violent behaviors in the future[,]" there is nothing in the record to suggest that defendant was incapable of entering knowing and voluntary guilty pleas. Defendant, beyond his self-serving certification, presented no evidence from a medical doctor opining that his limited intellectual ability or the side effects of Haldol and Elavil either singly or in combination prevented him from knowingly and voluntarily pleading guilty to the offenses.

Finally, we recognize that a defendant's claim of ineffective assistance of counsel is more likely to require an evidentiary hearing because the issues usually involve facts not readily discernable from the trial record and may require testimony from a defendant's attorney. State v. Preciose, 129 N.J. 451, 462 (1992). As we have previously noted,

[g]enerally, a claim of ineffective assistance of counsel cannot be raised on direct appeal. Rather, defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice.

[State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).]

Consequently, neither the PCR judge nor a reviewing court is positioned to "speculate as to the reasons for counsel's conduct or accept without a more fully developed record the State's explanations for that conduct." Ibid. Thus, "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

Here, defendant claims that his attorney told him to lie about his past in order to secure a sentence at ADTC. As an initial observation, the fact that defendant pled guilty to aggravated sexual assault required a psychological examination to determine whether defendant's conduct was characterized by a pattern of repetitive, compulsive behavior and whether defendant was amenable to sex offender treatment and willing to undergo such treatment. N.J.S.A. 2C:47-1.

Defendant does not challenge the findings, but assumes that those findings would have been different had he not falsely stated that he had been sexually molested as a child and previously committed a similar crime. He presents no evidence in the form of certifications or affidavits from ADTC personnel describing the process of the evaluation, including what weight, if any, is given to a defendant's self-described history in the overall evaluation process. In the absence of such evidence, it was reasonable for the PCR judge to conclude that,

To suggest that the defendant was told to lie by counsel about his background and that he was able to pull the wool over the eyes of . . . the Adult Diagnostic and Treatment Center whose job it is to treat people who are likely to reoffend and who are compulsive and repetitive suggests all of the testing and all of the evaluative processes that defendant[']s charged with the kind of crimes that [defendant] was means nothing; that merely about childhood molestation is sufficient to place this defendant in a very specialized institution.

Thus, defendant failed to establish a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. The PCR judge properly denied defendant's request for such a hearing.

We affirm substantially for the reasons expressed by Judge Philip Paley in his April 15, 2005 oral decision.

Affirmed.

 

The indictment reflects Count 15 as being a violation of N.J.S.A. 2C:12-1(b)(2).

(continued)

(continued)

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A-5389-04T4

August 30, 2007