STATE OF NEW JERSEY v. MARK BOWERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6281-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK BOWERS,

Defendant-Appellant.

__________________________________

December 21, 2012

Submitted August 27, 2012 - Decided

Before Judges Alvarez and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1277.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant Mark Bowers pled guilty to two counts of armed robbery, two counts of possession of a weapon for an unlawful purpose, and one count of obstructing the administration of law, the court sentenced him to an aggregate prison term of eighteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal from the denial of his petition for post-conviction relief (PCR), defendant asserts his trial counsel did not pursue a diminished capacity defense, failed to challenge the veracity of a confidential informant, failed to "put forth" defendant's inability to testify against the codefendant, and did not properly advise defendant of the penal consequences of his plea. Defendant contends that these omissions rendered counsel's assistance ineffective. The record before us discloses that defendant failed to establish a prima facie case that his counsel was ineffective. Accordingly, we affirm.

I.

On July 19, 2005, defendant accepted the State's plea offer and pled guilty to committing, with others, three first degree armed robberies of jewelry stores. As part of the plea agreement, defendant agreed to testify, if necessary, against the other perpetrators. In exchange, the State agreed to recommend an aggregate ten-year prison term to be served concurrently to a sentence defendant was serving in Georgia.

After defendant entered his plea but before he was sentenced, the State executed a series of search warrants and discovered letters written by defendant. The content of the letters convinced the State that defendant had been "manipulative, dishonest, and that his intent to testify at trial was one that was not bona fide." The State successfully moved to vacate the plea and the plea agreement.

Defendant was re-indicted on April 21, 2006, and subsequently pled guilty to two counts of first degree armed robbery, N.J.S.A. 2C:15-1 (counts two and eight); two counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts four and ten); and fourth degree obstruction of the administration of law, N.J.S.A. 2C:29-1(a) (count thirteen). After merging the weapons offenses with the robbery offenses, the court sentenced defendant to eighteen years in prison with an eighty-five percent period of parole ineligibility and five years of supervision upon release under NERA on each of the two robbery counts; and a concurrent sixteen-month prison term on the obstruction count.

Defendant did not file a direct appeal. More than three years after his sentence, he filed his PCR petition. The trial court denied defendant's petition after a non-evidentiary hearing. Defendant appealed. He argues:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF

(a) Trial counsel's failure [to] put forth a defense of diminished capacity

(b) [Trial counsel's] [f]ailure to challenge the veracity of [t]he confidential informant

(c) [Trial counsel's] [f]ailure to put forth Defendant's inability [t]o testify against codefendants due to [f]ear of retaliation

POINT II

DEFENDANT WAS NOT PROPERLY ADVISED OF THE PENAL CONSEQUENCE OF HIS PLEA AND THEREFORE HIS PLEA WAS NOT MADE VOLUNTARILY OR KNOWINGLY

POINT III

REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF

II.

To prove ineffective assistance of counsel, defendant "must show that counsel's performance was deficient," that is, "that counsel made errors so serious that [he or she] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and that the deficient performance prejudiced the defense, that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Our Supreme Court has adopted the Strickland standard for such claims arising under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

When a defendant accuses an attorney of rendering ineffective assistance, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Consequently, to satisfy the two-prong Strickland test, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege 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). As to the second prong, "[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." Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, a defendant must establish "'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.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Plaintiff asserts in his three-pronged argument in Point I that his trial counsel failed to: assert the defense of diminished capacity; challenge the veracity of the confidential informant; and assert defendant's inability to testify against his codefendants due to fear of retaliation.

Defendant has supported his diminished capacity argument with nothing more than unsubstantiated assertions that trial counsel should have explored a diminished capacity defense. Although defendant alleges there "is pertinent reference to [his] problem with bipolar disorder," he cites nothing more than the PCR court's comment that "a history of bipolar disorder [was] suggested in the pre-sentence investigation report." No medical reports or medical records support his claim. As the court stated during the PCR hearing, there is "no evidence . . . to show that the [defendant], indeed, is suffering from bipolar disorder, was suffering from bipolar disorder at the time of the event, or that that was such a medical condition that it would have affected his ability to form the requisite mental state." We agree.

To be admissible, evidence of a defendant's mental disease must be

relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

[N.J.S.A. 2C:4-2.]

Because defendant has submitted no medical records or reports, there is no competent evidence that he suffered from a mental disease or defect when he robbed the jewelry stores. More significantly, defendant has submitted no evidence suggesting that depression or bipolar disease negated the state of mind that was an element of any offense to which he pled guilty. Defendant's unsupported assertion is insufficient to establish the first prong of the Strickland test. Cummings, supra, 321 N.J. Super. at 170.

For the same reason -- defendant's failure to do more than make an unsupported assertion -- we reject his argument that trial counsel was ineffective for failing to challenge the veracity of a confidential informant. Defendant claims that a confidential informant provided law enforcement authorities with the tip that "led in the direction of [d]efendant." Defendant contends that his trial counsel's failure to challenge the veracity of the confidential informant deprived him of the ability to make an informed decision about pleading guilty.

In response, the State points out that the "confidential informant" is more appropriately labeled a "cooperating witness," because he was one of the perpetrators of the jewelry store robberies. The State also points out that the witness was identified in the grand jury proceeding that resulted in the first indictment. Defendant does not dispute that he was aware of the identity of the "confidential informant" at the time he entered his plea, nor does he claim to have been denied access to the transcript of the grand jury proceedings. Significantly, while defendant was participating in one of the jewelry store robberies that was captured on videotape, a codefendant accidentally shot defendant. Defendant's blood was found at the scene. Thus, there was evidence, other than that provided by the coconspirator, that suggested defendant had participated in the robbery. Defendant's unsupported, conclusory allegations about his counsel failing to challenge the veracity of a confidential informant fall far short of satisfying the Strickland test.

In the last argument under his first Point, defendant contends trial counsel was ineffective for "[failing] to put forth defendant's inability to testify against codefendants due to [his] fear of retaliation." Defendant asserts that had the situation been properly investigated, "counsel could have used that information to re-negotiate the original plea whereby the outcome of the proceeding would have been substantially different."

The record refutes defendant's contention and establishes that the State would not have recommended a lesser sentence. At the sentencing proceeding, after defendant and his attorney addressed the court, the prosecutor recounted the circumstances resulting in the State moving to vacate the original plea. The prosecutor believed that defendant had not made a bona fide agreement to testify against the codefendants, and that after entering his first plea, defendant had engaged in manipulative and dishonest conduct. The prosecutor also stated: "an extended term would be a very realistic outcome of a trial and for that reason . . . this eighteen year sentence is . . . a generous recommendation on the part of the State."

The prosecutor emphasized that her knowledge of the history of the plea agreements "enable[d] [her] to say without qualification that the only one who set [defendant] up was [defendant] with an attempt to play both ends against the middle in this case." Finally, the prosecutor informed the court that despite defense counsel's vigorous plea negotiations on defendant's behalf, the State had "resisted [in]numerable attempts on [defense counsel's] part . . . to have the sentence that was being recommended reduced, and those attempts have continued throughout this case up to and including the entry of this plea . . . ."

The prosecutor's statements undermine defendant's assertion that the prosecutor would have been inclined to offer a lesser prison term had defense counsel somehow more forcefully asserted defendant's fear of retaliation.

Defendant next asserts in Point II that his counsel misled him into believing the State would offer a plea agreement of seven years, and that both the State and defense counsel "misled him by making unrealistic and false promises of leniency with regard to his pending case in Georgia and used the information he provided to increase his penal exposure as opposed to decreasing it." From those assertions, defendant argues that his plea and conviction should be set aside. We disagree.

First, the record refutes defendant's allegations. During defendant's first plea hearing, the prosecutor explicitly stated "the State has agreed to recommend a sentence on the three charges not to exceed a custodial sentence of ten years." The prosecutor also represented that if the codefendants were tried and defendant testified, the State would make "those facts . . . known to the Georgia authorities and for whatever use they may make of that information." Defense counsel informed the court that defendant was serving "a sentence of about twenty years in Georgia, . . . [and that] he started that sentence relatively recently." Later during that first plea hearing, defense counsel stated in response to the court's question:

[The prosecutor] has agreed to contact the prosecutor in Georgia who handles [defendant's] matter down there . . . and speak with him about the disposition of this case and . . . at least make the request to have [defendant] re-sentenced in Georgia.

Now that is, of course, being done with the understanding that's a request. Obviously, there's nothing that a New Jersey prosecutor can do to bind someone in the State of Georgia. But the office is going to make the request that based upon the cooperation that's been given to date, and any further cooperation that may be given after today, that [defendant] be given some benefit down in Georgia towards the 20 year sentence that was imposed there.

Defendant was not misinformed about the State's recommendation of a ten-year term or about what the State was willing to do with respect to the Georgia authorities. Even if defendant was somehow misled by the statements the prosecutor and defense counsel made to the court during the first plea hearing, the issue is moot. Defendant subsequently reneged on his agreement to cooperate against his codefendants and thereafter the State successfully moved to vacate his plea.

More significantly, defendant did not request to withdraw his second guilty plea. During defendant's second plea hearing, he made a number of allegations against his attorney. Following defendant's statements, the prosecutor noted, ". . . I did not hear, and I would submit wisely from [defendant], a request at this point to retract his guilty plea . . . ." The court agreed: "I, like [the prosecutor] didn't hear the defendant indicate that he is seeking to retract his plea, that the factual basis that he gave is inappropriate or that it was false in any respect."

The record of both plea proceedings refute defendant's contention that he was misled about the penal consequences of his plea. Defendant has not established that but for his counsel's errors, he would not have pled guilty and would have insisted on going to trial. See DiFrisco, supra, 137 N.J. at 457.

Finally, defendant argues in Point III that he should have been granted an evidentiary hearing on his PCR petition. To establish the right to an evidentiary hearing, a defendant must present a prima facie claim of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462 (1992). Because defendant failed to present a prima facie case on any of his claims, he was not entitled to an evidentiary hearing.

A