Opinion
DOCKET NO. A-3248-14T1
05-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELIJAH LYLES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-04-0767. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Elijah Lyles appeals from a February 9, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
On January 6, 2011, officers of the Jersey City Police Department were investigating a series of armed robberies in the vicinity of Ege Avenue and Kennedy Boulevard. During the investigation, the officers detected the smell of marijuana emanating from two nearby cars. As the officers approached, the two cars drove away, and the officers followed. At a red light, the driver of one of the cars, later identified as defendant, proceeded to turn his car sharply and accelerate at a high speed. A car chase ensued, followed by a brief period in which defendant attempted to flee on foot. Defendant was ultimately apprehended and placed under arrest. A search of defendant's car revealed a Sturm Ruger .357 revolver, which was loaded with five live ball rounds and one hollow-point round.
On June 14, 2011, a Hudson County grand jury issued Indictment No. 11-04-0767, charging defendant with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); fourth-degree possession of a prohibited device — specifically, a hollow-point bullet, N.J.S.A. 2C:39-3(f) (count three); second-degree eluding law enforcement officers, N.J.S.A. 2C:29-2(b) (count four); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b) (count six).
On March 21, 2012, defendant entered a negotiated plea of guilty to counts four and six, in exchange for the prosecutor's recommendation that defendant receive a seven-year prison term with five years of parole ineligibility. Pursuant to the plea agreement, defendant was free to argue for a five-year prison term at sentencing. Following oral argument, defendant received two concurrent five-year prison terms with no parole eligibility. At the plea hearing, defendant confirmed that he was satisfied with the legal services he received, and that his plea was voluntary and of his own free will. He did not file a direct appeal.
On July 22, 2013, defendant filed a petition for PCR, alleging ineffective assistance of counsel during his plea proceedings. In particular, defendant certified that he was a paranoid schizophrenic who was not taking any medication at the time of the plea. He claimed that his un-medicated condition rendered him incapable of knowingly entering a plea agreement, and his attorney was ineffective for allowing him to enter a guilty plea even though he told his attorney of his condition. To support this contention, defendant produced certifications from his mother and fiancée detailing the severity of his mental health issues.
Defendant also supported his petition with an expert report from Dr. Daniel P. Greenfield, a psychiatrist, who opined that "it is likely that [defendant] was not able to engage in the complex higher intellectual analytic thought processes necessary to have knowingly, intelligently, and voluntarily accepted a plea offer when he did — when he was untreated, to my understanding — in connection with the above PCR matter." Dr. Greenfield based his opinion on a March 27, 2013 treatment report issued by the Department of Corrections, which indicated that defendant was diagnosed with paranoid schizophrenia following his incarceration. Importantly, Dr. Greenfield did not review the transcript of the plea colloquy or examine defendant personally when formulating his opinion.
At the December 18, 2014 PCR hearing, as well as in a February 9, 2015 written opinion, Judge Joseph V. Isabella, who also presided over the plea and sentencing hearings, reviewed the relevant transcripts in the record and found no indication that defendant was incapable of entering into a plea:
Most importantly, the record undermines [defendant's] claim that he was not lucid during his plea hearing. Throughout the entire plea hearing, both this Court and plea counsel asked [defendant] a number of questions. [Defendant] answered every
single question perfectly. [Defendant] accurately answered questions pertaining to the charges levied against him, the maximum penalty he was facing, parole ineligibility, the Graves Act, his counsel's advice, his right to proceed to trial, his right to confront the state's witnesses, and his right against self-incrimination. [Defendant] also provided an accurate factual basis for his plea. . . . The plea transcript evinces no uncontrollable rage or repetitive speech on the part of [defendant]. In their certifications, [defendant's] mother and [fiancée] state that when [defendant] was actively symptomatic, he would fall into violent fits making him intolerable to be around and that he would yell and rant to the point where you could not have a conversation with him. If [defendant] had been acting in such a manner at his plea hearing, this Court would have questioned [defendant] about his mental state. No such colloquy occurred. At the time of his plea, [defendant] either did not have schizophrenia, was not symptomatic, or was on some type of medication that controlled the symptoms of a psychiatric condition. This Court need not speculate as to which one of the above-listed possibilities accurately describes [defendant's] mental state as it existed at the time of his plea because they all compel the same conclusion: [defendant] was lucid at the time of his plea proceeding, and therefore was capable of knowingly and voluntarily entering into a plea.
The judge rejected Dr. Greenfield's expert report regarding defendant's mental capacity during those proceedings:
Given the [one-year] time gap between [defendant's] plea and his actual diagnosis of Schizophrenia, the expert report of Dr. Greenfield cannot be said to support [defendant's] claims in this matter. Dr.
Greenfield's report (which is based on a post-plea, Department of Corrections treatment report) does not even attempt to explain the existence of a connection between [defendant's] mental state at the time of his plea and his after-acquired schizophrenia diagnosis.
The judge also analyzed defendant's motion to withdraw the guilty plea under the four-factor test set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). With regard to the first factor, the judge concluded that defendant did "not assert any claim of innocence, let alone a colorable one, to undermine confidence in the validity of the guilty plea . . . ." As for the second factor, the judge found that defendant failed to advance any evidence in support of his claim that he was schizophrenic at the time of his plea and was not taking medication for this condition at the time of the plea. Concerning the third factor, the judge noted that defendant did receive the benefit of a plea bargain, and thus, pursuant to State v. Smullen, 118 N.J. 408, 416-17 (1990), faced "a heavier burden in the context of plea withdrawal." Finally, with respect to the fourth factor, the judge noted that the State did not offer any specific evidence of prejudice, but nevertheless would suffer prejudice if the plea was withdrawn and the case proceeded to trial. The judge based this conclusion on the fact that three years had passed since defendant's arrest, which would "naturally hinder the State's ability to present evidence."
Accordingly, the judge issued an order denying defendant's PCR petition and motion to withdraw the guilty plea. Defendant now appeals this order, raising the following arguments:
POINT I
SINCE THE PRESENTENCE REPORT CONFIRMED THAT DEFENDANT HAD "SEVERE PARANOIA" PRIOR TO THE PLEA HEARING, AND SINCE DEFENDANT ESTABLISHED THAT HE HAD "PARANOID SCHIZOPHRENIA" AFTER THE PLEA HEARING, THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PROTECT THE DEFENDANT FROM ENTERING A GUILTY PLEA WITHOUT BEING PROPERLY MEDICATED WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
THE PCR COURT ERRED IN DENYING DEFENDANT'S POST-CONVICTION RELIEF MOTION TO SET ASIDE HIS GUILTY PLEA PURSUANT TO STATE V. SLATER.
II.
To establish a prima facie case of ineffective assistance of counsel, a petitioner must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). With regards to the first prong, performance is objectively deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. As for the second prong, to show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim, the petitioner "must allege specific facts and evidence supporting his allegations." Id. at 355. Importantly, "bald assertions" of ineffective assistance are insufficient to necessitate an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We agree with the PCR judge that defendant failed to produce sufficient evidence to establish a prima facie claim of ineffective assistance of counsel, particularly with respect to the first prong. As the PCR court noted, the plea transcript did not indicate that defendant exhibited any of the symptoms which his mother and fiancée mentioned. Neither their certifications nor defendant's own certification alleged he was suffering from any symptoms on the day of the plea.
Moreover, the only expert report in the record, authored by Dr. Greenfield, is speculative in nature and cannot be said to provide competent support for defendant's petition. Dr. Greenfield did not personally examine defendant, nor did he review the transcripts of defendant's plea hearing or sentencing hearing. Rather, the only factual predicate for Dr. Greenfield's report was a DOC treatment report created on March 27, 2013 — more than a year after defendant accepted the plea agreement. Dr. Greenfield did not acknowledge that defendant's guilty plea had been a year earlier, or attempt to explain why defendant would have been affected a year earlier. Without an assessment of defendant's state of mind at the time he accepted the plea, Dr. Greenfield's opinion, to the extent it speculates on defendant's state of mind during the plea proceedings, was an inadmissible net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005) (explaining that an expert's opinion must be based on "facts or data . . . perceived by or made known to the expert." (quoting N.J.R.E. 703)); State v. Russo, 243 N.J. Super. 383, 395-96 (App. Div. 1990) (confirming that an expert opinion regarding diminished capacity was inadmissible because it "declined to express any opinion at all as to defendant's state of mind on the day of the crime"), certif. denied, 126 N.J. 322 (1991).
Absent any admissible expert opinion in the record, defendant has not put forth sufficient competent evidence indicating that he lacked the mental capacity to knowingly enter into a plea agreement. See generally State v. Chew, 179 N.J. 186, 215-20 (2004); State v. Savage, 120 N.J. 594, 618-19 (1990); State v. Breakiron, 108 N.J. 591, 619 (1987). Therefore, he cannot satisfy the first prong of the Strickland test. His assertions of ineffective assistance of counsel amount to no more than bald allegations, which are insufficient to substantiate a PCR petition. Cummings, supra, 321 N.J. Super. at 170. We agree with the PCR judge that an evidentiary hearing "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Defendant's remaining arguments regarding his motion to withdraw the guilty plea lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION