STATE OF NEW JERSEY v. R.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

July 25, 2014

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1354.

Joseph E. Krakora, Public Defender, attorney forappellant (RobertD. VanPelt, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jeffrey M. Lichtstein, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant R.L. appeals from a June 15, 2012 Law Division order denying her petition for post-conviction relief (PCR). On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION THAT SHE FAILED TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCES OF COUNSEL ARISING OUT OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.

B. TRIAL COUNSEL WAS INEFFECTIVE IN HAVING FAILED TO PRESENT OR INVESTIGATE AN INSANITY DEFENSE.

C. TRIAL COUNSEL FAILED TO PRESENT OR INVESTIGATE A DIMINISHED CAPACITY DEFENSE.

Based upon our review of the record and applicable law, we conclude these arguments are without merit. For the reasons that follow, we affirm.

We discern the following facts from the record. On April 27, 2007, defendant, then nineteen years old, gave birth to a full-term, live baby girl in the bathtub of her parent's home where she resided. Defendant wrapped the baby in a hooded sweatshirt, tied the strings of the hood around the baby s neck and placed the baby in a plastic container used to store clothes. She then placed two more plastic containers on top of the one containing the baby.

Defendant was already the mother of one child; she had concealed the pregnancy from her parents because her father had threatened to remove her from the home if she had another child. After defendant delivered the baby, her parents discovered she was bleeding and took her to the hospital, where medical personnel determined she had recently given birth. When questioned, defendant denied giving birth. Two days later, defendant admitted to delivering a baby, but gave conflicting reports of where she had disposed of the baby. When police officers were unable to locate the baby, defendant s mother consented to a search of her home for the infant. Police then discovered the deceased baby in the storage container.

Defendant was arrested and charged in a three-count indictment with murder, N.J.S.A. 2C:11-3(a)(1) or 2C:11-3(a)(2) (count one); child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count two); and endangering the welfare of a child, N.J.S.A. 2C:24-4A (count three). On December 6, 2007, defendant entered into a plea agreement and pled guilty to an amended charge, aggravated manslaughter, N.J.S.A. 2C:11-4A. Pursuant to the agreement, the State agreed to dismiss the remaining charges and recommend a sentence of twenty-years imprisonment, with an eighty-five percent period of parole ineligibility, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On February 7, 2008, defendant appeared in court for sentencing. On that date, her counsel successfully argued that defendant's history of emotional problems and her lack of a prior criminal record warranted a prison term less than the plea agreement. The sentencing judge was persuaded and, over the State's objection, sentenced defendant on the aggravated manslaughter charge to a fifteen-year term of imprisonment, subject to NERA, rather than the twenty-year term provided in the plea agreement. The lighter sentence resulted because defendant's plea counsel presented mitigating factors and successfully argues for leniency.

On February 3, 2010, defendant filed the petition under review, alleging she had been denied the effective assistance of trial counsel. On June 15, 2012, Judge Joseph V. Isabella issued a written decision denying defendant's PCR application without conducting an evidentiary hearing. This appeal followed.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

The determination on whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he [or she] relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2014).

Based upon our review of the record and applicable law, we are satisfied defendant's appellate contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of counsel, as she has failed to show her attorney's performance was deficient or resulted in prejudice. As Judge Isabella explained in his written opinion:

First, with regards to [p]etitioner's . . . argument that her attorney failed to mitigate her sentence, this contention is clearly contradicted by the record. Petitioner was charged with murder, which carries with it a maximum penalty of life in prison. . . . Petitioner's attorney was able to negotiate a plea with the prosecutor and obtain a far lesser sentence of 20 years. Then, at the sentencing hearing, [p]etitioner's attorney was able to reduce her sentence even further. . . . Petitioner's claim that her trial counsel failed to mitigate her sentence is without merit.

Second, . . . [p]etitioner's . . . claim that her attorney failed to investigate . . . is also groundless because the petitioner failed to show that an investigation would have [led] to exculpatory evidence. . . . [A]s we observed in State v. Cummings 321 N.J. Super. 154 (App. Div.)[,] certif. denied, 162 N.J. 199 (1999), a defendant must do more than make a broad assertion the trial counsel's performance was deficient because counsel failed to pursue a particular line of investigation. The defendant must also demonstrate that had such investigation been pursued, it would have resulted in exculpatory evidence. Id.

In the instant matter, [p]etitioner's proofs fall short of the Cummings standard because she has not presented proof that had her attorney pursued an investigation it would have established a defense. In [p]etitioner's brief, her attorney submits that her trial counsel should have had [p]etitioner undergo a psychological evaluation but omits to indicate for what reason and what the outcome would have been. . . . Accordingly, because [p]etitioner has failed to establish that an investigation would have produced exculpatory evidence, counsel's performance cannot be deemed deficient.

The record contains no evidence defense counsel provided ineffective assistance; rather defendant s counsel secured a favorable plea agreement, and a more favorable sentence. Moreover, there are no affidavits or reports from a psychiatrist, medical records, or other legally competent evidence to support defendant's claim she lacked the requisite mental capacity to commit the offense charged. Therefore, we find no basis to disturb Judge Isabella's decision to deny defendant's petition for PCR and we affirm substantially for the reasons expressed in his cogent written opinion.

Affirmed.