STATE OF NEW JERSEY v. VINCENT WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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.

VINCENT WILLIAMS,

Defendant-Appellant.

May 29, 2014

Submitted May 20, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-01-00170.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, 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 Vincent Williams appeals from a November 30, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was charged in count one of Indictment No. 10-01-00170 with the murder of his nine-year old stepson, J.C. The indictment additionally charged defendant with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); fourth-degree cruelty and neglect of a child, N.J.S.A. 9:6-3 (count three); second-degree eluding, N.J.S.A. 2C:29-2b (count four); and second-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(2),(3), (count five).

Pursuant to a negotiated agreement, on March 28, 2011, defendant pled guilty to count one, which was amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). In exchange for the plea, the State agreed to dismiss the remaining charges and to recommend a thirty-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement further provided that the sentence would run concurrent with sentences to be imposed on defendant's pending violation of probation, and on a separate indictment, No. 09-06-2127, charging him with third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5), to which defendant had previously pled guilty on an earlier date.

On April 29, 2011, the court sentenced defendant in accordance with the plea agreement to a thirty-year prison term, subject to NERA, on Indictment No. 10-01-00170, and ordered that the sentence be served concurrently with an eight-year prison term imposed on Indictment No. 09-06-2127, and eighteen-months' imprisonment for defendant's violation of probation.

Defendant did not file a direct appeal. On August 17, 2011, defendant filed a pro se petition for PCR, which he supplemented with a certification dated September 15, 2012, following the appointment of counsel.1 In a supporting brief, PCR counsel argued that trial counsel was ineffective for (1) failing to have defendant evaluated by an expert to support a defense of diminished capacity, and (2) failing to investigate and argue mitigating factors at sentencing. PCR counsel also argued that defendant's thirty-year sentence for aggravated manslaughter was excessive, and at oral argument contended that trial counsel was additionally ineffective for failing to move to dismiss the indictment.

Following oral argument on November 30, 2012, the PCR court rendered a comprehensive oral opinion denying defendant's petition for PCR. The court found no basis for any of defendant's claims that counsel was ineffective. The court also rejected defendant's argument that his sentence was excessive and further found this argument procedurally barred under Rule 3:22-4 as it should have been raised on direct appeal. Since defendant failed to establish that counsel's performance was deficient "[u]nder the Strickland2 analysis," the court declined to order an evidentiary hearing.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT ONE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING

A. The Failure to Challenge the Murder Indictment

B. Counsel's Performance at Sentencing

C. Failure to Investigate the Diminished Capacity Defense

POINT TWO DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT

We affirm, substantially for the reasons given by the PCR court in its cogent oral opinion denying defendant's petition for failure to establish a prima facie claim.

We add the following comments only. In order to establish the two elements of an ineffective assistance of counsel claim that are required by Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693, and State v. Fritz, 105 N.J. 42, 58 (1987), which adopted the two-part Strickland test in New Jersey, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel;" he must allege specific 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). For example, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Here, with respect to his contention that trial counsel failed to investigate a diminished capacity defense, defendant has done nothing more than make unsupported conclusory allegations. In his certification, he states that as a foster child he "suffered extreme physical and mental abuse," and, "[a]s a result, I have a long history of mental health issues and believe I suffered diminished capacity at the time of this crime." However, he has failed to present any medical or psychiatric records, or expert reports, that would provide a competent evidential basis for a diminished capacity defense, which requires a showing of a particular condition relevant to his ability to have formed the requisite mental state. See State v. Breakiron, 108 N.J. 591, 619 (1987).

Defendant's argument that trial counsel was ineffective for failing to challenge the murder indictment is equally unavailing. Essentially, defendant contends that he was disadvantaged in plea bargaining, and had he only been indicted on lesser charges of aggravated or reckless manslaughter, he would have been in a better position to negotiate a more favorable plea. Defendant's argument that the State would have offered a more advantageous plea is entirely speculative. Moreover, we conclude that trial counsel's effort to dismiss the indictment would likely have been futile.

Before the grand jury, the State elicited the details of defendant's statement to police that he became angered at his young stepson for wetting himself, and then proceeded to punch him in the chest twice, kick him numerous times as he was balled up in a corner trying to protect himself, and then failed to secure medical help for the boy despite knowing that he was severely injured. The grand jury was further informed that the autopsy report revealed "numerous injuries over [the child's] body, ranging from his head to his lower extremities," that "the cause of [] death was blunt trauma to the torso, and that the manner of [the child's] death was homicide." We deem these proofs sufficient to support the murder indictment. Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).

Additionally, for the first time on appeal, defendant argues that he was denied the effective assistance of counsel because his plea attorney permitted him to enter a plea which lacked a proper factual basis. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Nonetheless, having examined the record of the plea proceedings, we find no merit to defendant's argument.

A court must be satisfied an adequate factual basis for the plea exists. State v. Campfield, 213 N.J.218, 230 (2013). Each element of the offense to which a defendant pleads guilty must be addressed during the plea colloquy. Id.at 231 (citing State ex rel. T.M., 166 N.J.319, 333-34 (2001); State v. Sainz, 107 N.J.283, 293 (1987)); see alsoPressler & Verniero, CurrentN.J. Court Rules, comment 1.3.2. on R.3:9-2 (2014). "The factual foundation may take one of two forms; defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[ ] . . . facts constituting the essential elements of the crime.'" Campfield, supra, 213 N.J.at 231 (citing Sainz, supra, 107 N.J.at 293).

During his plea colloquy, defendant admitted that he repeatedly punched and kicked his young stepson, then failed to seek medical treatment that he knew the child needed, thus manifesting extreme indifference to human life. Additionally, the following exchange ensued:

[PROSECUTOR]: Judge, I would also supplement the record with the findings of Dr. Feigin, the medical examiner who performed the autopsy of [J.C.], who opined that the child died of blunt trauma to the torso, which caused a large perforation of the duodenum, was bleeding into the child's abdominal cavity.

[THE COURT]: All right. Is that your understanding as to what happened, sir?

[DEFENDANT]: Yes.

[THE COURT]: And the cause of death?

[DEFENDANT]: Yes.

We are satisfied that the plea judge elicited an adequate factual basis to support defendant's guilty plea. We note further that at sentencing, after the prosecutor recounted the beating that defendant, a twenty-six-year-old man weighing 200 pounds, administered to the nine-year-old, sixty-nine pound boy, defendant remarked, "Everything she said was true," thereby reaffirming the factual details underlying his guilty plea.

Finally, defendant argues, again for the first time on appeal, that PCR counsel was ineffective, primarily for failing to argue that defendant received an illegal sentence on the assault indictment. However, defendant's Notice of Appeal references only the manslaughter Indictment, No. 10-01-00170, and not the assault Indictment, No. 09-06-2127.

"It is a fundamental of appellate practice that we only have jurisdiction to review orders that have been appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009); see also 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[O]nly the judgment or orders designated in the notice of appeal . . . are subject to the appeal process and review.").

Accordingly, because this issue is not properly before the court, and the court lacks jurisdiction to review it, we do not address it, and deny relief without prejudice to defendant's right to seek PCR on the assault indictment.

Affirmed.

1 The PCR petition only referenced indictment No. 10-01-00170, while defendant's later certification referenced both indictments. Defendant's Notice of Appeal from the denial of his PCR petition references only Indictment No. 10-01-00170.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).