Opinion
DOCKET NO. A-3917-14T1
09-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERNEST M. LAWRENCE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Currier. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-3241. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant, Ernest Lawrence, appeals from a March 31, 2015 order denying his petition for post-conviction relief. He presents these arguments:
POINT IHaving considered the record and found no competent evidence to support defendant's ineffective-assistance-of-counsel claims, we affirm.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO INVESTIGATE DEFENDANT'S "MENTAL HEALTH PROBLEM AT THE TIME OF THE CRIME."
POINT II
THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO REVIEW ALL THE DISCOVERY. (Not Raised Below).
After hearing evidence that defendant stabbed his children's nineteen-year-old mother seventeen times and then fled their home, leaving her to die, a jury found defendant guilty of murder, weapons offenses, and hindering his own prosecution. For those offenses, a judge sentenced defendant to a forty-five-year aggregate prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed his conviction and sentence but remanded the case to have the trial court correct the jail credits in the judgment of conviction. State v. Lawrence No. A-4252-10 (App. Div. August 12, 2013). The Supreme Court denied certification. State v. Lawrence, 217 N.J. 293 (2014). Four months after the Supreme Court denied certification, defendant filed a PCR petition.
In his PCR petition, defendant alleged, among other things:
3. My attorney was ineffective in not having me evaluated for mental health issues. My attorney was aware that I had a mental health problem at the time of the crime. I was taking daily medications (sinequan and visteril) for anxiety and depression and I was under the influence of drugs and alcohol.
4. I believe my attorney was also ineffective for failing to request a limiting instruction regarding 404b evidence.
5. She also failed to argue appropriate mitigating factors and the inappropriate over valuing of the aggravating factors.
6. My attorney also failed to review my entire discovery and effectively advise me of the strength of the State's case. Nor did she seek to negotiate an appropriate plea offer.
The trial court rejected defendant's arguments. In an oral decision delivered on March 30, 2015, the court noted, among other things, "[n]othing in the record creates a factual predicate that would cause this [c]ourt to conclude that the defendant was prejudiced by the failure to have a medical evaluation, or that the defendant does indeed suffer from mental illness." The court also noted defendant had failed to support "his claim with any relevant evidence supporting his assertion that he suffered from a mental disease such that his capacity to purposefully or knowingly cause the death of the victim was diminished." Determining defendant had supported his claim "with nothing more than his own assertions" and concluding that more than bald assertions were needed to establish a right to an evidentiary hearing, the court denied defendant's request for a hearing on this issue.
On appeal, defendant argues his trial counsel was ineffective for not having him evaluated for mental health issues and the possibility of a diminished capacity or insanity defense, and the trial court erred by finding to the contrary. Defendant also argues his trial counsel failed to review the entire discovery.
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord. State v. Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima facie claim of ineffective assistance of counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).
A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013) (citation omitted). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In other words, a defendant "must do more than make bald assertions that he was denied effective assistance of counsel[;] [h]e must allege specific 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 case before us, defendant has not alleged specific facts sufficient to demonstrate counsel's alleged substandard performance. Defendant's ineffective-assistance claim concerning his mental health is based on nothing more than his own unsupported statements, namely, "[m]y attorney was aware I had a mental health problem at the time of the crime. I was taking daily medications (sinequan and visteril) for anxiety and depression and I was under the influence of drugs and alcohol." Defendant has offered no documentary evidence of prescriptions for his medications, nor has he offered an expert report or medical literature explaining the effects of his medication either in isolation or when mixed with alcohol and drugs. In short, defendant has failed to demonstrate that an evaluation "for mental health issues" was even remotely likely to support a diminished capacity or insanity defense, let alone a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Fritz, supra, 105 N.J. at 58.
Relying on State v. Savage, 120 N.J. 594 (1990), defendant contends trial counsel's non-performance was so egregious it was tantamount to a complete denial of representation, conduct rendering it "unnecessary for a defendant to demonstrate prejudice." Savage, supra, 120 N.J. at 614-15 (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 668 (1984)). Defendant's reliance on Savage is misplaced. In Savage, "[t]here were numerous facts in the record that indicated the importance of investigating a psychiatric or diminished-capacity defense." Id. at 618. Those facts included defendant's bizarre behavior before and after the crime, which "so strongly indicate[d] that he may have been suffering from mental problems" the Supreme Court "[found] it incomprehensible that counsel never even considered a psychiatric defense." Id. at 619. In contrast, here defendant points to no facts in the record concerning his behavior before and after the crime, but merely relies on his own unsupported assertions that he had mental health issues and was under the influence of alcohol and drugs when he committed the crimes. These unsupported assertions do not demonstrate a prima facie case of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170.
Equally devoid of merit is defendant's claim his trial counsel was ineffective for failing to review the entire discovery. Defendant does not identify the discovery he claims was not reviewed, nor does he suggest how counsel's review of the entire discovery somehow would have or should have caused counsel to take or refrain from taking any action or engage in a different trial strategy. The argument lacks sufficient merit to warrant further discussion. 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