STATE OF NEW JERSEY v. MICHAEL A. FITZPATRICK

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL A. FITZPATRICK,

Defendant-Appellant.

July 17, 2014

Submitted June 24, 2014 Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2648.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael A. Fitzpatrick appeals from the January 27, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On June 19, 2009, pursuant to his plea agreement with the State, defendant was sentenced to five years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on an amended count of second-degree robbery, N.J.S.A. 2C:15-1. Defendant did not file a direct appeal.

The judge who accepted defendant's guilty plea, after finding it was entered knowingly and voluntarily, said:

Because there was a question about [defendant's] . . . ability to proceed, the Court carefully read [the] evaluation.[1]

The Court observed [defendant]. Seems to be bright. His affect is correct. I witnessed no aberrant behavior, either physically or emotionally.

Among the questions defendant was asked was whether he was under the influence of "prescription medicine or drugs or alcohol that would make you not understand the proceedings today[.]" During the plea colloquy, defendant had no difficulty with responding to any question he was asked, or with following along the thread of the discussion.

At sentencing, defendant asked the judge:

When I got indicted I got indicted for a first-degree armed robbery and my papers say that the original charge was a first-degree robbery. And from, you know, after all the time I've been locked up and it hasn't helped with my . . . legal situation, I have found out that the robbery was only a second-degree robbery because there was no weapon actually used. A second-degree robbery is with force or by a threat. So it says, on the other side, final charge[]s, it says amended to robbery second degree. So that means that the robbery was . . . dropped down from the indictment of a first-degree robbery to a second degree; however, it was only --- should have been indicted under a . . . second degree robbery by a threat . . .

The prosecutor responded that because defendant had "threatened immediate use of a deadly weapon, pretended that he had a weapon . . . [t]hat's why it was indicted [as a] first, and it was plead to second[-degree.]"

Attached to defendant's pre-sentence investigation report (PSI) are summaries of interviews, conducted by the Camden County Prosecutor's Office Major Crimes Unit, with employees of the bank defendant robbed. As one employee described it, on May 16, 2007, defendant, who was a customer, walked into the bank, and sat down in front of his desk. Defendant "simulated that he had a gun in his waistband and demanded money." Defendant also threatened the employee by stating, "I know your family and their moves." Defendant instructed that individual to put unmarked small bills into a bag and not to activate the alarm.

As that employee walked behind the counter, defendant stood at a teller station and continued to interact with staff, assuring them that they would not be harmed if they cooperated. The teller who actually handed defendant the money said defendant shouted "[g]ive me the money, I'm not playing," and that once the stacked bills were placed on the counter, he put them in his pants pocket and fled on foot. The incident was captured on video. Defendant was not apprehended until nearly three months later.

At the PCR hearing, defendant contended that his attorney was ineffective because he should only have been indicted for a second-degree crime, as he did not possess a weapon when the offense occurred. Defendant also argued that his attorney was ineffective because he did not raise his mental health status as a mitigating factor.

In rendering his decision on the application, the PCR judge initially observed that defendant "had a long history of criminal activity . . . including a conviction for distribution of a controlled, dangerous substance within 1000 feet of a school/school property." He added that in order for defendant to be charged with first-degree robbery, it was not necessary for the victims to have actually seen a gun; it sufficed that they believed he had one as a result of his words and gestures. The judge further found the record did not support defendant's claim that his attorney was ineffective by failing to use his mental health history to argue that at sentencing the second-degree offense should be reduced to a third-degree offense under N.J.S.A. 2C:44-1(f)(2), or that he failed to use his mental health history as a mitigating factor during plea negotiations.

In the PCR judge's opinion, defendant's undisputed mental health history was no doubt taken into account in negotiations when the State agreed to reduce the degree of the offense from first-degree to second-degree, and to recommend the lowest possible term of imprisonment within the second-degree range. Additionally, nothing in the record supported the claim that the statute's "very stringent standard" could have been met had an N.J.S.A. 2C:44-1(f)(2) application been made for sentencing to an offense one degree lower; the interests of justice simply did not require it. We agree.

Defendant raises as points of error:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A MEANINGFUL HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

A. THE POST-CONVICTION COURT'S ORDER SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION TO CONDUCT AN EVIDENTIARY HEARING ON THE PETITIONER-APPELLANT'S CLAIMS OF FAILURE TO CONSULT WITH HIM AND INFORM HIM HOW HIS MENTAL ILLNESS COULD BE USED AS A DEFENSE OR IN MITIGATION OF SENTENCE AND IF THE STATEMENT THAT HE WOULD BE SENTENCED IN LIFE IN PRISON WAS APPROPRIATE GIVEN THE MENTAL HEALTH MITIGATING FACTOR.

B. THE POST-CONVICTION COURT'S ORDER SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION FOR RESENTENCING SINCE PETITIONER-APPELLANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE-ASSISTANCE-OF-COUNSEL IN FAILURE TO ARGUE MITIGATING FACTORS IN THE WITHIN MATTER.

Generally, PCR is a "'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). A petition for PCR essentially acts as a defendant's final opportunity to contest the "'fairness and reliability of a criminal verdict in our state system.'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a PCR hearing provides a final opportunity to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).

A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. Nash, supra, 212 N.J. at 541. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

In order to obtain relief from the ineffective assistance of trial or appellate counsel, a defendant must allege facts sufficient to establish a prima facie case under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.

In establishing deficient performance, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In establishing prejudice, a defendant must demonstrate that counsel's performance so prejudiced the adversarial process as to make the outcome unjust. See State v. Perry, 124 N.J. 128, 147 (1991). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the 'wide range of [reasonable] professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Therefore, 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).

In the context of claims of ineffective assistance of counsel during the plea process, a defendant must demonstrate that counsel's advice "was [not] within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). A defendant must also establish that there is a reasonable probability that he would not have accepted the sentencing offer to which he ultimately agreed, and that he would have proceeded to trial but for counsel's errors. Hill, supra, 474 U.S. at 59, 106 S. Ct. at 369, 88 L. Ed. 2d at 2010. Prejudice, regarding a counsel's ineffectiveness, is not presumed. Fritz, supra, 105 N.J. at 60-61.

On appeal, we ask whether the PCR court's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). We engage in "highly deferential" scrutiny of counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted).

Turning to the proofs available to the State, defendant was taped during the bank robbery and was known to the employees. Clearly, identification was not an issue. Defendant's words and gestures intended to convey that he had a gun, and that so long as everyone cooperated, no one would be hurt. Given these strong proofs, it is unlikely defendant would have proceeded to trial. A jury could readily have found him guilty of a first-degree offense, punishable by imprisonment ranging from a minimum of ten years to a maximum of twenty years, subject to NERA, as the statute defines a first-degree robbery as one in which a person is guilty "if, in the course of committing a theft, he: . . . (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury." N.J.S.A. 2C:15-1(a)(2). The statute makes robbery a crime of the first degree where the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). Even simulated possession of a weapon suffices. State v. Chapland, 187 N.J. 275, 290-92 (2006).

The record is clear that both counsel and the court were well aware of defendant's mental health history. A competency evaluation was completed shortly before he entered his guilty plea.2 Defendant told the PSI writer that he had been previously diagnosed with schizophrenia; that information is included in the report.

Furthermore, defendant's conduct the day of the robbery, during the course of which he gave explicit instructions to bank employees whom he threatened, cuts against any claim that at the time the incident occurred his behavior was affected by a mental health condition. He fled, successfully, and was not apprehended until almost three months later.

In any event, there is no basis to assume that the prosecutor would have agreed to a sentence in the third-degree range. Counsel had already obtained a significant reduction in the degree of the charge and the sentence.

Similarly, counsel was not ineffective because he failed to argue that defendant should be sentenced to a term within the range one degree lower pursuant to an N.J.S.A. 2C:44-1(f)(2) application. That statute states that:

[i]n cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interests of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

The sentencing judge could not have found that the mitigating factors substantially outweighed the aggravating, as there were no applicable mitigating factors, much less that the interests of justice demanded a sentence for a lesser offense based on defendant's mental health. The court found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Contrary to defendant's argument, the evidence in the record did not support the possibility the judge could have found mitigating factor four, "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4). Defendant's conduct on the day of the crime did not appear to be influenced by any mental health diagnosis, nor was there anything inherent in the crime that would have suggested some disturbance of the mind. There were no mitigating factors found by the judge, nor are there any that can be suggested as plausible. The interest of justice did not require, as the PCR judge found, that sentencing should have been in the third-degree range.

The guilty plea to a second-degree robbery, for a recommended term of imprisonment of five years subject to NERA, was a very favorable sentence for this defendant. There is no reasonable probability that but for counsel's alleged errors he would not have accepted the plea and would have proceeded to trial. Defendant has failed to establish a prima facie case of ineffective assistance of counsel. Hence the PCR judge's decision that no evidentiary hearing was necessary was also appropriate.

Affirmed.

1 Defendant was evaluated for competency to stand trial before the plea was entered.

2 The competency report, dated May 5, 2009, stated that the treatment team believed defendant's performance on testing seemed to indicate he was "exaggerating and/or feigning psychotic symptoms and memory problems in an [attempt] to avoid his legal responsibilities."