STATE OF NEW JERSEY v. MICHAEL WATSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2791-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL WATSEY,

Defendant-Appellant.

________________________________

June 23, 2014

Submitted April 28, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-03-0407, 10-03-0418 and 10-03-0419.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).

PER CURIAM

Defendant Michael Watsey appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

Defendant was charged in three separate Middlesex County indictments, as well as violation of probation on two prior indictments. Indictment No. 10-03-0418 charged one count of second-degree health care fraud, N.J.S.A. 2C:21-4.3(c). The State alleged that, between April 2006 and March 2009, defendant used a doctor's prescription pad to forge prescriptions and submitted the costs of the prescriptions to a Medicaid plan for reimbursement. An investigator claimed that the fraud resulted in a loss of $15,607.66 to the Medicaid plan.

Indictment No. 10-03-0407 charged one count of third-degree conspiracy, N.J.S.A. 2C:5-2, and four counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h). The State alleged that, in July 2009, defendant and another person used a credit card that did not belong to either without permission and obtained merchandise valued at more than $500.

Indictment No. 10-03-0419 charged one count of third-degree theft, N.J.S.A. 2C:20-3. The charge arose from defendant's theft of jewelry from a J.C. Penney store in January 2010. The jewelry was valued at approximately $2,000.

On May 13, 2010, pursuant to a plea agreement, defendant pleaded guilty to charges in all three indictments and to violation of probation. The plea agreement capped defendant's aggregate sentence at seven years imprisonment with three years of parole ineligibility. On July 6, 2010, defendant was sentenced in accordance with those terms on the second-degree charge of health care fraud. He was also sentenced to concurrent terms of imprisonment on the third-degree charges of the other two indictments and for violation of probation on the two prior indictments. Defendant did not appeal his convictions and sentence.

Defendant filed a petition for PCR on August 4, 2011. He alleged that his plea counsel provided ineffective assistance in three respects: (1) he did not investigate the validity of some of the prescriptions to determine whether they had been issued by doctors and thus could have reduced the charge below the second-degree level; (2) he falsely told defendant that he had been rejected from the Drug Court program when the attorney had not filed an application on defendant's behalf for enrollment in that program; and (3) he failed to perceive that defendant was entering his guilty pleas under great mental strain during a time of withdrawal from drugs and later failed to pursue defendant's request to withdraw his guilty pleas. The PCR judge considered the written PCR submissions and heard argument of counsel. By oral decision on November 14, 2012, the judge denied the petition without holding an evidentiary hearing.

On appeal, defendant makes the following arguments:

POINT I

BECAUSE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE HE WAS PREJUDICED THEREBY, THE COURT BELOW ERRED IN DENYING HIS MOTION FOR POST-CONVICTION RELIEF.

A. Trial Counsel Was Ineffective When He Failed To Determine Which Prescriptions Alleged As Fraud Were In Reality Legitimate.

B. Trial Counsel Was Ineffective In Failing To Seek Watsey's Admission to Drug Court, Or Another Drug Treatment Program, And Instead Advised Watsey That He Was Rejected From The Program When In Fact No Application Had Ever Been Made.

C. Trial Counsel Was Ineffective When He Failed To Notice That His Client Was Not Mentally Capable Of Entering A Guilty Plea And Did Not Aid Him In Withdrawing Same When This Mental Condition Was Brought To Counsel's Attention.

POINT II

IT WAS PLAIN ERROR FOR THE COURT TO NEGLECT TO ASK THE PETITIONER WHETHER HE HAD TAKEN ANY MEDICATION OR WAS OTHERWISE EXPERIENCING AN ALTERED MENTAL STATE AT THE TIME HIS PLEA WAS TAKEN.

There is a presumption that defendant received the assistance of counsel 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, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198.

His allegations did not satisfy the two-pronged test of ineffective assistance, namely, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. [And] . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Fritz, 105 N.J. 42, 51-52 (1987).

Where ineffective assistance is alleged following a guilty plea, the defendant must show "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).

With respect to defendant's first allegation of ineffective assistance of counsel, defendant was alleged to have used forged prescriptions for a period of three years, costing more than $15,000 in fraudulent Medicaid reimbursements. He did not allege in his PCR petition that he was innocent. He only alleged that some of the prescriptions were valid, and his plea attorney should have discovered that fact by calling the doctors to determine which prescriptions were legitimate. However, at the time of his guilty plea, defendant admitted he had forged at least five prescriptions, which is an element of the offense that raises it to the second-degree level under N.J.S.A. 2C:21-4.3(c). He has never claimed that legitimate prescriptions would have reduced the total fraud to less than $1,000, which is the additional threshold for a second-degree offense. Defendant did not allege facts that would have affected the likelihood of his conviction for second-degree health care fraud.

With respect to the allegations that his attorney falsely told him he had been rejected from the Drug Court program, and also should have realized that his mental state did not allow a voluntary plea of guilty, defendant was well aware or should have been aware of these contentions at the time of his sentencing in July 2010. Before the sentencing, defendant replaced the attorney who had represented him for his guilty plea with a new attorney. He spoke to the judge at the time of sentencing about his desire to enter the Drug Court program and his plans to enroll in a drug rehabilitation program. He alleged that his prior attorney had not represented him adequately in pursuing those goals.

At the same time, the transcript of the sentencing hearing demonstrates defendant's full knowledge of the nature of the proceedings and his plea agreement and anticipated custodial sentence. He said he was feeling healthier than he had in years as a result of his incarceration after he entered his plea. At no time did defendant or his new attorney notify the sentencing judge that defendant wished to withdraw his guilty plea.

Defendant could have but did not request to withdraw his guilty plea at or before sentencing when he had a new attorney to make his motion. Nor did he take a direct appeal, by which he could have challenged the validity of his guilty plea. His failure to raise those issues in prior proceedings when he was aware of them and could have raised them bars those issues from consideration at a later time on a PCR petition. R. 3:22-4(a).

For the same reason, defendant's claim that the trial court had an obligation to ask at the time of his guilty plea whether he was under the influence of any medication is barred by Rule 3:22-4(a) because it could and should have been raised at the time of sentencing or on direct appeal.

We also reject defendant's contention that the PCR court erred in dismissing his petition without holding an evidentiary hearing. An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, an evidentiary hearing would not have been beneficial in assessing whether the allegations defendant raised would have affected his guilty plea, convictions, and sentence. In that regard, we note the trial court's comments that defendant received a favorable plea offer and sentence, when considering his lengthy prior criminal record and multiple charges pending against him.

The trial court did not err in denying defendant's PCR petition.

Affirmed.