STATE OF NEW JERSEY v. DENNIS SILVA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4197-08T44197-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS SILVA,

Defendant-Appellant.

______________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-07-2529.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dennis Silva appeals from denial of his petition for post-conviction relief (PCR) under Rule 3:22. We affirm.

Following indictment in 2002 on six counts of first-degree armed robbery, N.J.S.A. 2C:15-1, defendant entered into a plea agreement and pleaded guilty to all six counts in exchange for a sentence of eleven years' imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the State agreed that any sentence for defendant's violation of probation on sentences that he was serving at that time would run concurrently with the prison term for the robberies.

At the plea hearing, the court addressed defendant and counsel and covered in detail defendant's due process rights, the terms of the plea agreement, defendant's knowing and voluntary decision to enter into the plea agreement, and a factual basis for each charge of armed robbery and violation of probation. Defendant had also completed a plea form with the assistance of his attorney, in which the same subjects were addressed in detail.

The relevant facts of the underlying offenses are that from May 7 to May 18, 2002, defendant approached six separate victims and threatened to harm them if they did not give him money. Defendant would indicate that he had a weapon a gun, knife, or screwdriver according to different victims sometimes by pointing to a bulge in his pocket. The victims were two gas station attendants, two store clerks, and two other persons in the street. Defendant obtained cash from some of the victims. At the time of these robberies, defendant was on probation for prior convictions for possession of a controlled dangerous substance and for aggravated assault upon a police officer. He had failed to comply with the conditions of his probation.

On May 30, 2002, defendant was sentenced in accordance with the plea agreement to concurrent terms of eleven years' imprisonment on each of the six first-degree robbery charges, with eighty-five percent of the term to be served before parole under NERA and five years of parole supervision after his release from prison. Defendant was also sentenced to concurrent four-year terms of imprisonment on the violation of probation charges. Defendant was ordered to pay restitution of $382 and appropriate statutory money penalties. According to defense counsel, defendant is not scheduled to be released from prison until September 2011.

Defendant filed a notice of appeal of his sentence, which we heard on October 18, 2004, in an Excessive Sentence Oral Argument Calendar pursuant to Rule 2:9-11. We denied the direct appeal of his sentence by order of the same date. State v. Silva, No. A-1706-03T4 (App. Div. Oct. 18, 2004). The Supreme Court denied defendant's petition for certification. 182 N.J. 430 (2005).

Defendant filed a pro se petition for PCR on January 18, 2008, within five years of his conviction. See R. 3:22-12(a). Counsel was assigned, and an amended PCR petition was filed on behalf of defendant in July 2008. Through both his pro se and his counsel's petitions, defendant alleged he had been denied effective assistance of counsel at his plea and sentencing in 2002 because his attorney had failed to have defendant evaluated psychiatrically for the purpose of developing a defense of insanity or diminished capacity. Defendant alleged that he had a history of mental illness and he was a drug addict at the time he committed the robberies, and those factors should have been considered by the court. He also alleged that the same factors were not adequately addressed at his sentencing to mitigate the severity of his sentence.

Defendant was present with counsel at the hearing on his PCR petition held on October 3, 2008, before the trial judge who had taken defendant's plea and sentenced him six and a half years earlier. At the beginning of the hearing, defense counsel stated that the PCR petition would be submitted for the court's determination on the briefs and other papers filed. The court then addressed defendant personally and asked:

THE COURT: Mr. Silva, you do not wish to present anything, Sir, other than what's in the brief?

THE DEFENDANT: No.

THE COURT: This is your opportunity, Sir. Okay. You may be seated.

The court then placed its oral decision on the record, concluding that defendant's submissions did not establish a prima facie case of ineffective assistance of counsel requiring a hearing or other relief.

On appeal, defendant argues:

THE COURT ABUSED ITS DISCRETION WHEN IT

DENIED DEFENDANT AN EVIDENTIARY HEARING

TO ESTABLISH THAT HE FAILED TO RECEIVE

THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL,

BY THE U.S. CONST., AMENDS. VI, XIV; N.J.

CONST. ART. I, PAR. 10.

We reject defendant's argument, agreeing with the trial court that defendant failed to establish a prima facie case of ineffective assistance of counsel.

Defendant argues that his history of mental illness before commission of the robberies, as documented by medical reports dated December 1, 2000, and January 30, 2001, should have been pursued by his attorney before recommending that he accept the plea offer and plead guilty. He argues that his attorney should have engaged a psychiatrist to evaluate him to determine if he could present a defense of diminished capacity to the charges. In addition, he contends that his condition should have resulted in additional mitigating factors being considered at his sentencing. He argues that he was entitled to an evidentiary hearing on his PCR petition to determine if he had received effective assistance of counsel, as required by the federal and State constitutions.

On appeal, the standard of review from the decision of the PCR court is plenary on questions of law. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The factual findings of that court, however, are granted deference if they are supported by adequate, substantial, and credible evidence. Ibid. We review the trial court's decision not to hold an evidentiary hearing to determine if the court abused its discretion. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

In considering a petition for post-conviction relief, the court begins with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and article I, paragraph 10, of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007).

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Strickland test, "[t]he defendant must show that there is 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. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

Where ineffective assistance is alleged following a guilty plea, a defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

With respect to an evidentiary hearing, the Court in Preciose, supra, 129 N.J. at 462-63, stated:

[T]rial 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. 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.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington[.]" State v. Goodwin, 173 N.J. 583, 596 (2002). However, where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

In this case, although defendant cited his prior history of mental illness, he presented no evidence to demonstrate that the illness would have supported a defense of diminished capacity. We note that the PCR court asked defendant if he wished to present any evidence on the hearing date of his PCR petition, and defendant said no. Having declined to present testimony, defendant will not be heard on appeal to argue that the court erred in deciding the matter without holding an evidentiary hearing.

Furthermore, voluntary intoxication, which includes use of illegal drugs, see N.J.S.A. 2C:2-8e(1); State v. Sette, 259 N.J. Super. 156, 173 (App. Div.), certif. denied, 130 N.J. 597 (1992), is not a defense to a criminal charge unless it negates an element of the offense. N.J.S.A. 2C:2-8a; State v. Cameron, 104 N.J. 42, 51 (1986). While mental illness may negate the state of mind element of an offense such as robbery, defendant must "present[] evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea." State v. Galloway, 133 N.J. 631, 647 (1993). Here, the medical reports dating back some sixteen months before the robberies did not address whether defendant was unable to form the intent and purpose to commit the crime of robbery.

Also, in a PCR petition, defendant cannot rely simply on the failure of his trial attorney to obtain evidence that defendant now claims would have helped his defense. He must show that such evidence exists or existed by presenting affidavits, certifications, or similar proofs in support of his PCR petition. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); Cummings, supra, 321 N.J. Super. at 170. His "bald assertions" of failure and error by his trial attorney are insufficient to require that the court hold an evidentiary hearing. See Ibid.

Additionally, defendant here did not state in his pro se petition or through his attorney's amended petition that he would not have pleaded guilty if his attorney had pursued a psychiatric evaluation to develop the nature of his illnesses and his drug addiction. See Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210; DiFrisco, supra, 137 N.J. at 457. Defendant was facing strong evidence of the commission of six robberies in less than two weeks. Six separate victims would have testified about being approached and threatened with harm if they did not give money to defendant. Several of the victims had identified defendant as the robber, and he had confessed to the police. If convicted at trial, defendant could have received consecutive sentences ranging up to twenty years' imprisonment for each robbery. The plea agreement provided for concurrent sentences at the low end of the first-degree range, and it also provided for concurrent sentences on defendant's pending violation of probation charges. Defendant did not say in his certification in support of the petition, or otherwise, that he would have chosen to stand trial rather than accept the very favorable plea agreement offered by the prosecution.

As to sentencing, the trial court found mitigating factor four, N.J.S.A. 2C:44-1b(4), substantial grounds to excuse defendant's conduct though failing to establish a defense. It also found applicable aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a(3), (6), and (9), primarily because of defendant's extensive history of municipal court and indictable offenses. Defendant has not shown what other mitigating factors were relevant to his attorney's alleged ineffective performance.

Moreover, his sentence was subject to direct appeal in which all such issues could and should have been raised, and, in fact, his contention that other mitigating factors should have applied to his sentence was raised and ruled upon in the direct sentencing appeal. Defendant may not argue an issue on PCR that was argued or could have been raised in a prior proceeding. R. 3:22-4; R. 3:22-5; Marshall, supra, 148 N.J. at 150; State v. McQuaid, 147 N.J. 464, 483 (1997); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000).

Defendant received a sentence at the low end of the applicable range in accordance with his plea agreement. There was no showing of ineffective representation at the sentencing proceedings.

In sum, the trial court did not abuse its discretion in deciding the PCR petition without holding an evidentiary hearing and correctly denied the petition.

Affirmed.

 

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A-4197-08T4

August 27, 2010