STATE OF NEW JERSEY v. JABRIL A. MITCHELL

NOT FOR PUBLICATION WITHOUT THE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.

JABRIL A. MITCHELL,

Defendant-Appellant.

___________________________________

September 21, 2016

Submitted April 18, 2016 Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2332.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

HIGBEE, J.A.D.

Defendant Jabril A. Mitchell appeals from an October 20, 2014, order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues

THE PCR COURT ERRED IN DENYING MR. MITCHELL'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING[.]

We affirm.

We discern the following history from the record. On April 26, 2008, defendant was approached by two Atlantic City police officers. Defendant took out a gun, pointed it at one of the officers, and pulled the trigger. The weapon misfired. He then fled the scene. During the course of his flight from police, defendant brandished his gun at another officer who was sitting in his patrol car. He did not fire at this second officer. Finally, while fleeing down an alley, defendant pointed his gun at a third officer and pulled the trigger. Again, defendant's weapon misfired.

As a result of his actions, defendant was charged with two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1)(2) (Counts One and Six); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Counts Two and Seven); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (Counts Three and Eight); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Counts Four, Nine, and Fourteen); two counts of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (Counts Five and Ten); one count of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Eleven); one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Twelve); one count of fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (Count Thirteen); one count of fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (Count Fifteen); three counts of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (Counts Sixteen, Seventeen, and Eighteen); one count of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(2) (Count Nineteen); and one count of fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Twenty).

On March 4, 2009, defendant pled guilty to second-degree aggravated assault (Counts Two and Seven) and fourth-degree aggravated assault (Count Fourteen).

During his March 4, 2009, plea hearing, defendant provided a factual basis to each of these charges. At that time, defendant made clear that he was fully aware of his actions and that he intended to shoot the officers to aid in his escape. At no point during his testimony did defendant claim to have been intoxicated on the date of the alleged crimes.

The trial court imposed two consecutive six-year sentences subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for Counts Two and Seven, and a concurrent eighteen-month sentence for Count Fourteen. The aggregate twelve-year term was significantly shorter than what defendant would have faced were he found guilty of all charges at trial. The sentence was affirmed on appeal.

In July of 2013, defendant filed a pro se petition for PCR. After PCR counsel was assigned and a formal brief submitted, the PCR court heard oral argument on September 29, 2014. Numerous ineffective assistance of counsel claims were presented. They included assertions that trial counsel failed: to argue for concurrent rather than consecutive sentences during the plea deal; to assert a diminished capacity defense based upon defendant's newfound claim that he was intoxicated at the time of the alleged incident; to put forth an argument with respect to both aggravating and mitigating factors at sentencing; and to present certain pretrial motions. Defendant's petition for relief was denied by the PCR court.

The PCR judge specifically noted that the twelve-year sentence negotiated by defendant's counsel was significantly less than the potential sentence of more than forty years in state prison that defendant was facing if convicted following trial for attempted murder.

The PCR judge concluded there was no basis to conduct an evidentiary hearing as permitted by R. 3:22-10(b), because he found no facts that established a prima facie case of ineffective assistance of counsel. The court further determined that no evidence contained outside of the record would be useful in resolving the issue at hand and, as such, holding an evidentiary hearing would not aid in its analysis of whether defendant was entitled to post-conviction relief.

In regard to defendant's claim that trial counsel failed to assert a diminished capacity claim, the PCR judge noted that even if the court were to allow defendant to present evidence that he was intoxicated at the time of the alleged incidents, such evidence would not negate his admission that he was aware of his actions throughout the occurrence that took place on April 26, 2008. Further, the PCR judge found defendant's claims that counsel failed to argue applicable mitigating factors or for the imposition of concurrent rather than consecutive sentences lacked merit and were procedurally barred as issues that could have been raised on appeal.

We defer to the PCR court's factual findings so long as they "are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, we review the PCR court's legal conclusions de novo. Id. at 540-41.

Rule 3:22-10(b) provides PCR courts the discretion to grant an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). In the case of ineffective assistance of counsel claims, "trial courts ordinarily should grant evidentiary hearings . . . if a defendant has presented a prima facie claim in support of post-conviction relief." Id. The Supreme Court has held that where a defendant presents "a close but creditable prima facie case of ineffective assistance," he is entitled to an evidentiary hearing. State v. Jones, 219 N.J. 298, 316 (2014). To make such a determination, the facts should be viewed in the light most favorable to the petitioner. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

In order for a defendant to establish a prima facie case for ineffective assistance of counsel, he or she must meet the two prongs of the Strickland test, which is used to determine whether legal counsel acted in a reasonably competent manner, as required under the Sixth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment, as well as under Article I, paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The petitioner must show (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment . . . [and (2)] that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.

Bald assertions, however, will not suffice; rather, facts demonstrating the alleged substandard performance must be supplied. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Nor does a petition that "reveals only defendant's conclusory allegations that his counsel was deficient, that his counsel did not thoroughly explore his defenses, and that his guilty plea was not knowing and voluntary" meet the threshold of prima facie. State v. McDonald, 211 N.J. 4, 30 (2012). A defendant must prove both prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). In the absence of such evidence, courts must infer "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Marshall, supra, 148 N.J. at 157 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Even when a prima facie case has been established, an evidentiary hearing should only be held on the occasion that a PCR involves issues of disputed fact that cannot be resolved by reference to an existing record. State v. Pyatt, 316 N.J. Super. 46, 50-51 (App. Div. 1998). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted). As such, before an evidentiary hearing will be found necessary, the burden is on the petitioner to develop an adequate record demonstrating, via affidavits or certifications, "facts that would have been revealed" if not for the alleged ineffective assistance of counsel. State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002).

Against this legal framework, defendant claims that his petition established a prima facie case of ineffective assistance of counsel because counsel failed to make any argument in favor of mitigating factors at sentencing and failed to pursue a diminished capacity defense.1 Defendant asserts that these claims cannot be resolved without an evidentiary hearing because they require the introduction of evidence that was outside the record before the trial court. As such, defendant asserts that the PCR court erred in denying defendant's PCR without an evidentiary hearing. We will analyze each of those assertions in turn.

With regard to the first prong, defendant claims that counsel was ineffective for failing to argue that the sentence should have been mitigated due to defendant's mental health and substance abuse issues. The contention that defendant was either under the influence of drugs and alcohol or suffering from mental health issues at the time of the incident, or that this affected his clarity of thought, however, is not supported by any evidence in the record. This includes defendant's own testimony at the plea hearing, which denied any such history. Moreover, it is unsupported by any affidavit, certification, or other evidence provided by defendant. New Jersey case law makes clear that allegations that are vague, speculative, conclusory, or mere bald assertions will never be enough to establish a prima facie case of ineffective assistance of counsel and overcome the strong presumption that counsel acted within a liberal scope of professional reasonability. We conclude defendant's argument that counsel was ineffective in failing to make any argument at sentencing in favor of mitigating factors is without merit. Defendant fails to establish any semblance of a prima facie case as required under the two prongs of Strickland.

Even if we were to disregard this shortcoming in defendant's claim and assume counsel's representation was deficient, defendant also fails to satisfy the second prong. At no point does defendant's argument convince us that there is any reasonable probability that had counsel argued in favor of mitigation, a lesser sentence would have been imposed. As the PCR court notes, it is worth recalling that defendant was indicted for, among other things, two counts of first-degree attempted murder against two separate police officers. For these charges alone, defendant faced over forty years in state prison. But for counsel's ability to effectively negotiate a plea bargain, defendant could be facing a much longer sentence in prison.

Defendant's assertion that the PCR court should have held an evidentiary hearing in regard to his claim that trial counsel was ineffective for failing to investigate a defense of diminished capacity is similarly without merit. As the PCR judge pointed out, when determining whether a diminished capacity defense applies, a defendant must show that he does not have "a state of mind which is an element of the offense," N.J.S.A. 2C:4-2, which, as applied to this case, requires he lacked the intent to shoot the two police officers. During the plea hearing, however, defendant very clearly stated that his intention was to shoot the police officers in order to cause serious bodily harm to them so that he could escape their pursuit.

Moreover, a claim that a defendant lacked the mental state to commit a crime because of drug use is not analyzed under the umbrella of diminished capacity. The claim that one lacked the requisite intent needed to be convicted of a crime due to intoxication would be more properly evaluated under the voluntary intoxication provision of N.J.S.A. 2C:2-8(a), as voluntary intoxication is not viewed as a mental disease under our laws. However, this is not the claim that was raised. Even if defendant were to have advanced this argument, his own testimony as to the purpose behind his attempt to shoot the two officers would act as a barrier to any claim that he lacked the requisite intent necessary to be found guilty of the crimes of which he was accused.

Much like the claim that trial counsel failed to argue in favor of mitigating factors at sentencing, defendant's claim of diminished capacity is not supported by the record, as defendant failed to supply any expert reports, certifications, or affidavits indicating that there is any validity to his claim. Nor has defendant provided any evidence as to how, even if his claim had merit, he was prejudiced by the legal strategies undertaken by his trial counsel. We recognize that defendant's counsel managed, in the face of seemingly insurmountable evidence against his client, including both a statement he intentionally fired a weapon at police officers in an attempt to escape and the eyewitness reports of multiple police officers, to obtain a plea agreement with a sentence of only twelve years in prison, an outcome that in light of the charges faced was extremely favorable to defendant.

Affirmed.

1 Defendant's brief on appeal only addresses these two claims. We regard the claims that trial counsel failed to file certain pretrial motions and to argue for concurrent rather than consecutive sentences as abandoned and will not address them in this opinion. Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining failure to address an issue in a merits brief is considered abandonment); see also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2016) (stating "an issue not briefed is deemed waived").