STATE OF NEW JERSEY v. LEROY T. FAULKS

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2644-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LEROY T. FAULKS, a/k/a RAHEEM
FAULKS, LEROY R. FAULKS,
LEROY J. FAULKS, LEROY T.
FAULKS, JR., LEROY FAULKES,
LE ROY-JR FAULKS, LEROY-JR
FAULKS,

     Defendant-Appellant.
___________________________________

                    Submitted December 18, 2018 – Decided January 24, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 10-05-1256.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael J. Confusione, Designated Counsel;
                    William P. Welaj, on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
            Hanley, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Leroy Faulks appeals from the December 1, 2017 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. For the reasons that follow, we affirm.

      On May 19, 2010, an Essex County grand jury indicted defendant,

charging him with first-degree aggravated sexual assault,  N.J.S.A. 2C:14-

2(a)(1); second-degree sexual assault,  N.J.S.A. 2C:14-2(b); and second-degree

endangering the welfare of a child,  N.J.S.A. 2C:24-4(a).

      The charges stemmed from a sexual offense defendant committed against

his granddaughter in November 2009. At the time of the offense, the victim was

four years old, and defendant was forty-four years old. The victim reported the

incident to her mother (defendant's daughter). The State presented the testimony

of Detective Eric Marino of the Essex County Prosecutor's Office to the grand

jury; during his testimony, he played a video interview involving the victim, and

also read into the record a statement given to law enforcement by the victim's

mother.

      Pursuant to a plea agreement, defendant pled guilty to second-degree

sexual assault and the State agreed to recommend dismissal of the remaining

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charges. At his plea hearing before Judge Thomas Moore on January 4, 2012,

defendant acknowledged he had discussed the plea agreement and its

consequences with defense counsel; he was satisfied with counsel's services; he

read, initialed, signed, and understood the plea forms; he entered the plea freely

and voluntarily; no threats or promises were made to him; he fully understood

what was taking place at the hearing; and he had enough time to meet with

defense counsel prior to the hearing. Defendant also provided a factual basis

for his plea.

      On June 6, 2012, defendant underwent a psychological evaluation by Dr.

Mark Frank, Ph.D., a licensed psychologist and forensic mental health clinician.

The court ordered the evaluation to determine his "eligibility for sentencing

under the purview of the New Jersey Sex Offender Act."  N.J.S.A. 2C:47-1.

During the examination, defendant "claimed to have no memory of committing

the" offense, asserting that he was on "Xanax and some others," and that he

blacked out.    "[H]e acknowledged," however, that he "did [not] think his

granddaughter would lie about something so serious." Dr. Frank previously

evaluated defendant in 1993 when he was charged with aggravated sexual

assault against a twelve-year-old; during that evaluation, defendant admitted

that although he was heavily intoxicated at the time, he recalled the inciden t.


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Dr. Frank concluded defendant has "serious psychological problems, most likely

a psychotic disorder," rather than a "specific sexual compulsion" disorder.

      On July 27, 2012, the trial court sentenced defendant to eight years

imprisonment, subject to eighty-five percent parole ineligibility pursuant to the

No Early Release Act,  N.J.S.A. 2C:43-7.2, consistent with defendant's plea

agreement. Defendant did not appeal his conviction or sentence.

      On January 11, 2017, defendant filed a PCR petition, arguing that his trial

counsel was ineffective because he failed to: (1) request an independent

evaluation of defendant's amnesia claim; and (2) investigate and consider certain

defenses, such as diminished capacity and intoxication. Defendant claimed that

without an independent psychological evaluation, he "was incompetent to

provide a factual basis to support a guilty plea."

      On December 1, 2017, following oral argument, Judge James W. Donohue

entered an order denying defendant's PCR petition without an evidentiary

hearing, and issued a written opinion setting forth his findings and conclusions.

Judge Donohue found that defendant failed to assert a prima facie case in support

of his petition under Strickland v. Washington,  466 U.S. 668 (1984). The judge

further determined that defendant was not entitled to an evidentiary hearing




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because he could not demonstrate a likelihood that his claim would succeed on

the merits.

      First, the judge found defendant's claims procedurally barred, as

defendant "had six months to raise all the issues regarding trial counsel's failure

to conduct an adequate pre-trial investigation or to move to withdraw his guilty

plea. [Defendant] had adequate time before sentencing to move to withdraw the

plea." The judge also found that defendant's claims could have been raised on

direct appeal. Notwithstanding these findings, the judge went on to address

defendant's claims on the merits.

      The judge addressed defendant's claim regarding his trial counsel's failure

to obtain an independent evaluation before his guilty plea. The judge found that

trial counsel had the autonomy to make the strategic decision to not obtain an

independent evaluation, and that defendant failed to demonstrate that the result

of the proceedings would have been different. The judge also found that at

sentencing, "trial counsel acknowledged the lengthy process of evaluations that

the defendant underwent and explained the consequences of his guilty plea."

      Next, the judge addressed defendant's claim that trial counsel failed to

consider cognizable defenses such as diminished capacity, amnesia, and

intoxication. The judge found that defendant offered nothing in the record to


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show that "expediency overtook vigilance," as defendant asserted. On the other

hand, the judge found the record rife with proofs that trial counsel had

knowledge of defendant's mental health complications. At his plea hearing,

defendant affirmed that he had enough time to speak with his counsel, that he

was satisfied with the services of his attorney, and that he understood what was

discussed at the hearing. At sentencing, trial counsel acknowledged defendant

had spent time prior to sentencing at Ann Klein Psychiatric Center, was

"[i]nitially found incompetent then later found competent," and such facts were

not in Dr. Frank's report. Trial counsel contended defendant should receive jail

credits and psychiatric treatment. Ultimately, the PCR judge found defendant's

claim meritless on the basis of trial counsel's "thorough representation of the

defendant," as demonstrated by the record, and that any alleged prejudice was

"highly unlikely as the defendant . . . knowingly and voluntarily pled guilty."

      Lastly, the judge found that defendant voluntarily, knowingly, and

intelligently pled guilty to one count of second-degree sexual assault. Defendant

argued that he was incompetent to provide a factual basis to support his guilty

plea, primarily based on his counsel's failure to obtain an independent

psychological evaluation prior to the plea. The judge reviewed the plea hearing,

and found there was "nothing in the transcript which suggest[ed] that . . .


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defendant did not comprehend either the plea process or the questions he was

being asked by Judge Moore or by his trial attorney," and that defendant

"unequivocally indicated that he inappropriately touched the victim." The judge

further found that defendant did not assert he was "'misinformed' about a

material element of [the] plea negotiation[,] or that his . . . 'reasonable

expectations,' grounded in terms of the plea agreement[] were not fulfilled ,"

State v. Luckey,  366 N.J. Super. 79, 88 (App. Div. 2004) (internal quotations

omitted) (quoting State v. Howard,  110 N.J. 113, 122-23 (1988)), a requirement

for a claim to vacate a guilty plea.

      On appeal, defendant raises the following contentions:

            POINT I:

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION FROM TRIAL COUNSEL,
            RESULTING IN A GUILTY PLEA WHICH WAS
            NOT FREELY, KNOWINGLY AND
            VOLUNTARILY ENTERED.

            A. THE PREVAILING LEGAL PRINCIPLES
            REGARDING    CLAIMS OF  INEFFECTIVE
            ASSISTANCE OF COUNSEL, EVIDENTIARY
            HEARINGS AND PETITIONS FOR POST-
            CONVICTION RELIEF.

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            B.   THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            FAILURE TO REQUEST AN INDEPENDENT
            EVALUATION OF THE DEFENDANT AS WELL AS
            HIS FAILURE TO INVESTIGATE AND CONSIDER
            CERTAIN DEFENSES ON HIS BEHALF.

            C. THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL RESULTING IN A GUILTY PLEA
            WHICH HAD NOT BEEN FREELY, KNOWINGLY
            AND VOLUNTARILY ENTERED.

      For a defendant to establish a case of ineffective assistance of counsel, the

defendant must show that defense "counsel's performance was deficient," and

that "there exists 'a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'"         State v.

Preciose,  129 N.J. 451, 463-64 (1992) (quoting Strickland,  466 U.S. at 694).

Our Supreme Court approved that two-part test in State v. Fritz,  105 N.J. 42, 58

(1987), in which it held that the federal standard for evaluating an ineffective -

assistance-of-counsel claim approved in Strickland should apply in defining our

state constitutional guarantee of effective assistance of counsel.

      "When a guilty plea is part of the equation," our Supreme Court has

explained that



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            [t]o set aside a guilty plea based on ineffective
            assistance of counsel, a defendant must show that (i)
            counsel's assistance was not within the range of
            competence demanded of attorneys 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. Nuñez-Valdéz,  200 N.J. 129, 139 (2009)
            (alterations in original) (quoting State v. DiFrisco, 137
            N.J. 434, 457 (1994)).]

      We have carefully considered defendant's arguments in light of the

applicable law, and we conclude his arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons expressed by Judge Donohue in his cogent December 1, 2017 written

decision. We are satisfied that defendant has not established a prima facie case

of ineffective assistance of counsel, as he has not shown his trial counsel's

performance was deficient. See Strickland,  466 U.S.  at 687. Even assuming

arguendo trial counsel performed deficiently, defendant failed to show the

results of the proceeding "would have been different," State v. Parker,  212 N.J.
 269, 279-80 (2012) (quoting Strickland,  466 U.S. at 694), or that there was a

reasonable probability that he would have refused to plead guilty and insisted

on going to trial. Nuñez-Valdéz,  200 N.J. at 139. Furthermore, defendant is not

entitled to an evidentiary hearing as he failed to demonstrate a reasonable


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likelihood of success on the merits. See State v. Marshall,  148 N.J. 89, 158

(1997) (citing Preciose,  129 N.J. at 462-63).

      Affirmed.




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