STATE OF NEW JERSEY v. LUCHY M. SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0136-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUCHY M. SANCHEZ,

Defendant-Appellant.

___________________________________

December 20, 2013

Submitted on December 4, 2013 Decided

Before Judges Nugent & Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-06-1867.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin Ann Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Luchy M. Sanchez, appeals from the order that denied without an evidentiary hearing her petition for post-conviction relief (PCR). We affirm.

In March 1999 a Camden County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), for shooting and killing her boyfriend. On December 18, 2000, defendant pleaded guilty to aggravated manslaughter in exchange for the State agreeing to recommend an eighteen-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant had explored a defense of battered woman syndrome before pleading guilty. In July 2000, five months before defendant's plea, a forensic psychologist retained by defendant's attorney wrote a report stating that defendant was suffering from Post-Traumatic Stress Disorder, Major Depressive Disorder, and "Battered Women's Syndrome" when she shot her boyfriend. In November 2000, however, a forensic psychiatrist retained by the State wrote a report stating that defendant was not suffering from "Battered Woman Syndrome" when she shot her boyfriend. During her guilty plea colloquy, defendant acknowledged that she was waiving the right to assert any defenses that might be available to her.

Following her guilty plea, defendant retained new counsel and filed a motion to withdraw her plea. On February 2, 2001, during a hearing on her motion, defendant testified that when she entered the plea she was confused. She also was afraid that she might get a greater sentence or possibly life imprisonment. She claimed that she had been coerced by her first lawyer, a public defender, into pleading guilty, and that she did not have the opportunity to present certain defenses, including battered woman syndrome. The trial judge denied defendant's motion to withdraw her plea, sentenced her in accordance with the plea agreement to an eighteen-year custodial term subject to NERA, and imposed appropriate penalties and assessments.

Defendant did not file a direct appeal. More than six years after the judge sentenced her, defendant filed a PCR petition. In the November 26, 2007 petition, defendant urged the court to relax the time restrictions on filing a PCR petition because two attorneys and a paralegal in the prison system had failed to diligently pursue an appeal on her behalf. She also claimed that she had attempted to file a PCR petition without the assistance of counsel but could not obtain her file from her former attorney.

As to the merits of her petition, defendant asserted that she was entitled to post-conviction relief for the following reasons: (1) due to a conflict of interest the Office of the Public Defender did not adequately represent her following her arrest; (2) trial counsel failed to interview witnesses and failed to develop a defense based on "Battered Spouse Syndrome"; (3) trial counsel failed to adequately explain the State's plea offer; (4) several attorneys failed to adequately represent her after she was sentenced and one attorney failed to properly advise her of a potential conflict of interest; and (5) cumulative errors by all of her attorneys amounted to ineffective assistance of counsel.

For reasons not apparent from the record, defendant's PCR petition was not heard until April 23, 2010. By then defendant had retained yet another attorney, who had filed a supplemental brief. At oral argument, in addition to the issues she had raised in her PCR petition, brief, and supplemental brief, she asserted that when she pleaded guilty her mental condition was such that she was "not being of sound or rational thinking." Defendant based her argument, in part, on the report of her expert, which included diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder. Defendant argued that she was not competent to enter her guilty plea.

Following oral argument on defendant's petition, Judge Edward J. McBride, Jr. denied it. In a thorough opinion that he delivered from the bench, Judge McBride concluded that defendant's petition was procedurally barred. Nevertheless, he also addressed the merits of the petition, analyzed each argument defendant had raised in her petition, and concluded that defendant had not established a prima facie case of ineffective assistance of counsel.

Judge McBride declined to consider defendant's contention, raised for the first time at oral argument, that she was not competent to plead guilty and her second attorney was ineffective for failing to raise that issue. The judge explained that the issue had not been presented in a verified PCR petition filed with the court, and was therefore not properly before him. Judge McBride did not preclude defendant from raising the issue in a second PCR petition.

Defendant filed an appeal from the order denying her PCR petition. She presents the following arguments for our consideration:

POINT I

THE PCR COURT ERRED IN FAILING TO RELAX THE PROCEDURAL BARS.

A. RULE 3:22-2.

B. RULE 3:22-3.

POINT II

BY VIRTUE OF PETITIONER'S STATE OF MIND BOTH AT THE TIME OF THE INCIDENT AND THE TIME OF THE ENTRY OF HER PLEA, SHE WAS NOT ABLE TO COMPREHEND THE GRAVITY OR THE OUTCOME OF HER ACTIONS. BY ALLOWING HER TO ENTER THIS GUILTY PLEA, COUNSEL WAS INEFFECTIVE AND THIS INEFFECTIVENESS REQUIRES AN EVIDENTIARY HEARING TO DETERMINE WHETHER THIS BEHAVIOR CONSTITUTED A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE RIGHT TO COUNSEL.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, a defendant must establish under Strickland's second prong "'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.'" State v. DiFrisco, 137 N.J. 434, 456 (1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Defendants are entitled to an evidentiary hearing on a PCR petition only if they establish a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462-63 (1992). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland test. Id. at 463.

We first address the merits of defendant's second point. Although defendant appears to raise a single issue in her point heading, namely, that she was mentally incompetent when she entered her plea, she actually makes two arguments: she was not competent to enter her plea, and she did not knowingly waive the defense of battered woman syndrome. As to her argument concerning her waiver of a battered woman syndrome defense, we affirm the denial of her PCR petition substantially for the reasons given by Judge McBride when he denied that argument on its merits.

As to defendant's argument that she was incompetent to enter the plea, we agree entirely with Judge McBride that defendant did not properly raise the issue. As Judge McBride explained, defendant first contended that she was mentally incompetent at oral argument on her PCR petition. Significantly, defendant did not claim in her PCR petition or in an affidavit or certified statement that she was mentally incompetent when she entered her plea.

Moreover, defendant's forensic expert was never asked to determine whether defendant was competent to enter a guilty plea. The expert explained in her report that she evaluated defendant "to determine whether or not she was suffering from the 'battered women's syndrome[.]' . . . [and] to determine whether or not there was any relationship between [defendant's] being a battered woman and the charges for which she is now incarcerated." Similarly, the State's forensic psychiatric expert expressly stated in his report that he evaluated defendant "to assess the defendant's state of mind at the time of the offense and to render an opinion as to whether she was suffering from the Battered Woman Syndrome at that time."

Thus, defendant herself did not claim in her verified petition that she was mentally incompetent when she entered a plea, and her expert did not address the issue. See Rule 3:22-8 (requiring that the PCR petition "set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought").1

The remaining arguments defendant makes in Point II do not warrant discussion in a written opinion. R. 2:11-3(e)(2). In view of our disposition of defendant's arguments in Point II, it is unnecessary to address the procedural arguments she raises in Point I.

1 This text has remained unchanged from the 2007 version of the Court Rules in effect when defendant filed her PCR petition.