STATE OF NEW JERSEY v. MICHAEL S. FRIANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6322-06T46322-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL S. FRIANT,

Defendant-Appellant.

__________________________________________________

 

Submitted October 29, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 01-08-0402.

Yvonne Smith Segars, Public Defender, attor-ney for appellant (Philip Lago, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Water-ston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, we affirm the denial of defendant's petition for post-conviction relief (PCR) because he failed to provide a sufficient factual basis for any of his contentions.

Defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c), on January 4, 2002. He acknowledged during the plea hearing that he understood, among other things, the nature and content of the plea agreement and that, by pleading guilty, he would be required to register pursuant to Megan's Law. Defendant also provided a sufficient factual basis for his guilty plea.

Defendant moved on April 1, 2002 to vacate his plea. His new attorney argued that defendant did not knowingly and voluntarily enter a guilty plea, alluding to defendant's "hesitan[cy]" in responding to questions put to him at the plea hearing. After reviewing a videotape of the plea hearing, the judge found that defendant knowingly and voluntarily entered the guilty plea and denied the application for reasons thoroughly explained in his oral decision. The judge acknowledged that defendant was at times "reticent" in responding during the plea hearing, but the judge found that his reticence was due only to the gravity of the situation and was not a product of a lack of understanding or an unwillingness to plead guilty.

On June 4, 2002, in accordance with the plea agreement, defendant was sentenced as a third-degree offender to a three-year prison term. Defendant appealed and, with the exception of the vacating of an unwarranted financial penalty, we affirmed.

Defendant filed a PCR petition on October 18, 2005. On April 27, 2007, after hearing the argument of counsel, the judge denied relief. Defendant appealed, raising the following arguments:

I. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY.

A. DEFENDANT WAS UNDER THE INFLUENCE OF MEDICATION DURING THE PLEA.

B. DEFENDANT WAS MISINFORMED DURING PLEA DISCUSSIONS.

II. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSIS-TANCE OF COUNSEL BECAUSE COUNSEL FAILED TO INTERVIEW CRUCIAL WITNESSES.

III. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSIS-TANCE OF COUNSEL DURING THE PLEA BARGAINING STAGE.

IV. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEAR-ING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Defendant first argues that the guilty plea was involuntary, claiming he was under the influence of medication at the time. The only support for this factual contention is counsel's statement during the April 27, 2007 hearing; at that time, counsel argued:

[W]hen [defendant] was in the jail, [he] was receiving some medication, and that medication was having an impact on his thinking. . . .

Part of the medication that he was under he believes lowered his ability to tell [his prior attorney] and stand up to [his prior attorney] and tell him what he wanted. His diminished capacity resulted in him pleading guilty.

. . . .

[Defendant] . . . had never taken -- I believe it's Paxil before he went into the jail, and was prescribed that while he was in the jail.

It is noteworthy that this point was not raised when defendant moved to withdraw his plea on April 1, 2002, was not raised when he was sentenced on June 4, 2002, and was not raised during the argument of his direct appeal on December 10, 2002. In addition, the PCR record does not contain a sworn statement from defendant that he was prescribed this medication, that he ingested it at or about the time of the plea hearing, or that it had a negative impact that would justify his contention that he was unable to tell his attorney what he wanted to do at the time of the plea hearing. The record also does not contain a sworn statement from a medical expert regarding the impact of the medication in question. In the absence of a factual underpinning for defendant's unsworn and conclusory claims regarding his state of mind at the time he entered the guilty plea, the judge correctly determined that no evidentiary hearing was required and that defendant's claim on this point was without merit.

Defendant also argues he was denied the effective assistance of counsel because his attorney failed to interview witnesses helpful to the defense prior to the entry of his guilty plea. In this regard, defendant offers a document entitled "Request for Investigation" that was provided to his attorney on October 31, 2001, in which defendant suggested that Lauren Fryberger and others be interviewed. Defendant asserted that his attorney advised that nothing helpful was obtained during the investigation. In claiming this was erroneous advice, defendant provided to the trial court what purports to be Lauren Fryberger's written statement. This statement, which was undated, unsigned and unsworn, indicated: that, on the evening of the crime, Ms. Fryberger observed defendant and the victim leave a particular location together; that the victim returned alone fifteen minutes later; that Ms. Fryberger and the victim "talked for a little while," but then the victim "went to sleep" without saying anything about a sexual assault; and that, when Ms. Fryberger later asked the victim why she had claimed that defendant had sexually assaulted her, the victim said "because her boyfriend found out she was with [defendant] that night."

Despite the passage of eighteen months from the filing of the PCR petition until its disposition in the trial court, defendant never provided a sworn statement from Ms. Fryberger. As a result, the trial judge correctly refused to conduct an evidentiary hearing into this issue and properly denied the PCR petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

(continued)

(continued)

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A-6322-06T4

November 6, 2008