STATE OF NEW JERSEY v. DARNELL TATUM

NOT FOR PUBLICATION WITHOUT THE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.

DARNELL TATUM,

Defendant-Appellant.

___________________________________________________

June 25, 2015

Submitted June 2, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-09-01421 and 08-07-01263.

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

Andrew C. Carey, Prosecutor, Middlesex County, attorney (Joie Piderit, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Darnell Tatum appeals from a July 19, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing the record in light of the applicable law, we affirm.

In 2007, defendant was charged with one count of first-degree armed robbery, N.J.S.A. 2C:15-1, one count of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a), and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In 2008, defendant was charged, in a separate indictment, with one count of first-degree robbery, N.J.S.A. 2C:15-1, and one count of fourth-degree possession of an imitation firearm for unlawful purposes, N.J.S.A. 2C:39-4(e).

On June 1, 2009, defendant pled guilty to both first degree armed robbery charges. Pursuant to the plea negotiations, the State agreed to recommend two twelve-year concurrent sentences, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissal of the remaining charges of the indictments. At the sentencing hearing, the trial court imposed the recommended sentence.

On January 4, 2013, defendant filed a petition for PCR, based on "Illegal Sentence, New Information, Guilty Plea Accepted [W]ithout [F]actual [B]asis, Ineffective Assistance of Counsel." The "new information" that defendant claimed entitled him to PCR was "D.O.C. Mental health records coupled with the already on the file Dual opinions given by Ann Klein forensic center." As for the ineffective assistance claim, defendant stated that counsel failed to "entirely explain[]" the whole case and also failed to file an appeal.

With his petition, defendant submitted two mental health evaluations performed before his trial. First, in December 2007, Dr. Christine Joseph, a clinical psychologist at the Middlesex County Jail, concluded that "[c]ompetence could not be determined and [defendant] requires observation and possibly testing to assess his status and rule out malingering versus mood disorder with psychosis." The court sent defendant to Ann Klein Forensic Center for continual monitoring and observation. The following month, Dr. Benito Marty opined that defendant was suffering from schizoaffective disorder combined with substance abuse and antisocial personality, but that he was exaggerating his symptoms in order to avoid his charges or jail time. Dr. Marty reported that psychological testing showed "100% probability that [defendant] is feigning and or exaggerating psychiatric symptoms." Dr. Marty concluded that defendant was competent to stand trial.

On July 19, 2013, Judge Douglas K. Wolfson orally denied defendant's petition for PCR without an evidentiary hearing. The trial judge concluded that defendant failed to make a prima facie showing of ineffective assistance as defendant had not provided any support for his claims. In particular, concerning the diminished capacity issue, the judge pointed out that defendant failed to present a certification from a mental health expert showing that defendant met the medical criteria for that defense at the time of the commission of each crime.1 This appeal followed.

On appeal, defendant chiefly argues that the court's conduct at the PCR hearing denied him due process. Defendant does not argue that he provided sufficient certifications to establish a prima facie case, but urged that he was nonetheless entitled to an evidentiary hearing where he can establish the facts in support of his claims.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014) (citing State v. Afanador, 151 N.J. 41, 49 (1997)). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel includes "the right to effective counsel." State v. Cottle, 194 N.J. 449, 466 (2008) (citing State v. Norman, 151 N.J. 5, 23 (1997)).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" 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 considering ineffective assistance of counsel claims concerning a guilty plea, defendant must satisfy a modified Strickland standard

When a guilty plea is part of the equation . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded in criminal cases and (ii) 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. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (second alteration in original) (quotations omitted).]

Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356,372, 130 S. Ct. 1473, 1485,176 L. Ed. 2d 284, 297 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1001 (2000)).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." Jones, supra, 219 N.J. at 312.

Having considered the record in light of the applicable legal principles, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say that defendant failed to establish a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 462-63 (holding that to establish a prima facie case a defendant must demonstrate a reasonable likelihood of success on the merits). Moreover, we reject the claim that the lengthy and highly interactive oral argument on the petition in any way denied defendant due process.

Although defendant makes several vague claims about his counsel's deficiencies, the record is devoid of any factual or legal support for these claims. For example, defendant's submission of two psychological evaluations showing a history of mental illness failed to establish that counsel's alleged failure to investigate a diminished capacity defense prejudiced defendant. Defendant has not provided an expert report stating that he had a condition that would result in diminished capacity at the time of the commission of the crimes, nor does he argue that he met the legal criteria for the defense at the time of the crimes. Thus, defendant cannot establish that he would have insisted on a trial if counsel would have investigated the defense. See Nunez-Valdez, supra,200 N.J.at 139. As to defendant's claims that his plea had an insufficient factual basis, he failed to provide any substantive basis for this conclusion. Such unsupported allegations are the type of bare assertions that are insufficient for PCR. See Cummings, supra, 321 N.J. Super. at 170. Additionally, while defendant argues that counsel was ineffective in failing to take an appeal, he fails to certify when and how he requested counsel to file an appeal and, more importantly, provides no legal arguments demonstrating that an appeal would have been successful.

In sum, by failing to provide any legal or factual support for his contentions, defendant failed to prove that his counsel was ineffective, the first prong of the Strickland test. Fritz, supra, 105 N.J. at 58. Even assuming that his counsel was constitutionally deficient, defendant has failed to establish that he was prejudiced by such alleged failures, the second prong of Strickland. Nunez-Valdez, supra, 200 N.J. at 139; Fritz, supra, 105 N.J. at 60-61. As defendant has not established a prima facie case, he was not entitled to a hearing. See Preciose, supra, 129 N.J. at 462-63

Affirmed.

1 Diminished capacity is a claim that the defendant suffers from a mental disease or defect offered to prove "the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2. The court should instruct the jury on diminished capacity when a defendant presents "evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea." State v. Galloway, 133 N.J. 631, 647 (1993). In order to be entitled to such a jury instruction, there must be evidence both of a mental disease or defect and "that a connection is necessary between that mental disease or defect and the defendant's ability to form the required mental state for the crime charged." State v. Reyes, 140 N.J. 344, 364 (1995).