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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1014-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS MENDEZ,

Defendant-Appellant. _________________________ December 2, 2011 Submitted November 9, 2011 - Decided

Before Judges Payne and Simonelli.

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On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-11-1264.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Luis Mendez appeals from the March 23, 2010 order, which denied his petition for postconviction relief (PCR). We affirm. At approximately 1:00 a.m. on July 31, 2001, two young men entered a liquor store in Paterson where defendant was working. They got into an argument with defendant's father-in-law, and left the store with beer without paying. Defendant then left the store to confront the young men, and an argument ensued. The young men threw bottles and a garbage can at defendant, which upset him. Defendant returned to the store, retrieved a gun, went back outside, and shot and killed a seventeen-year-old boy who was an innocent victim. Videotape evidence of defendant retrieving the gun from the store, eyewitnesses to the shooting, and defendant's confession provided overwhelming evidence of defendant's guilt. A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and two counts of third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1). On the day of trial, defendant pled guilty to an amended charge of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), in exchange for the State's agreement to dismiss the remaining charges and recommend a ten-year term of imprisonment subject to an eighty-five percent period of parole ineligibility and three years of parole supervision upon release pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant admitted that he acted without thinking or acted recklessly at the time he fired the gun. Defendant also acknowledged that his sentence was subject to NERA; trial counsel read each question on the plea forms to him; he understood and answered each question and initialed and signed
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the plea forms; he voluntarily pled guilty no one forced him to do so; he was satisfied with trial counsel's services; and he had no questions about his plea. After the plea hearing, defendant fled to the Dominican Republic and failed to appear for sentencing on October 3, 2003. His bail was revoked, and a bench warrant was issued for his arrest. Defendant returned to the United States in November 2003, and sentencing occurred on February 6, 2004. At sentencing, the trial judge reviewed the pre-sentence report, which indicated that defendant claimed that "he has not been the same since being shot" in 1999, and that he "maintained his plea of guilty . . . and offered no further comments." The judge was also advised that defendant was robbed and shot at the same liquor store in 1999, received treatment for post-traumatic stress disorder as a result of that incident, claimed that he fired the gun in this incident out of fear and because he was being attacked, and was acting "in the heat of passion." The prosecutor responded that the State had taken this information into account in formulating the plea offer. Although the judge acknowledged the adverse effect that the 1999 incident had on defendant's life, he emphasized that defendant faced life imprisonment if convicted of first-degree murder, and that based on the evidence, there was a "strong possibility" that a jury would have convicted him of aggravated manslaughter "[e]ven though this could have been determined and classified as something done in the heat of the moment." The judge further emphasized that defendant would have faced up to thirty years in prison with twenty-five years of parole ineligibility if found guilty of aggravated manslaughter. The judge found and applied the following aggravating factors: "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The judge considered, but rejected, mitigating factors, including that "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3), because the victim had not been in the store. The judge sentenced defendant to a ten-year term of imprisonment with eight-and-one-half years of parole ineligibility and three years of parole supervision upon release. Defendant acknowledged that he had a right to appeal. Defendant did not appeal. Instead, in November 2007, he filed a pro se PCR petition. In September 2008, assigned PCR counsel filed an amended petition, a certification from defendant, and a brief. Defendant
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stated that trial counsel induced him to plead guilty because counsel had not properly investigated the case, counseled him not to appeal, and was ineffective because counsel failed to: (1) adequately investigate the 1999 incident and defendant's psychiatric sequelae resulting therefrom; (2) have a psychiatrist or psychologist examine him to determine whether he suffered from diminished capacity on the night of the shooting as a result of the 1999 incident; (3) consider self-defense or passion/provocation manslaughter; (4) inform him of NERA's post-release parole supervision requirement; and (5) argue for the following mitigating factors at sentencing: "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(2); "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3); "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1b(4); and "[t]he victim of the defendant's conduct induced or facilitated its commission," N.J.S.A. 2C:44-1b(5). In an oral decision, which was subsequently reduced to writing, a different judge found that Rule 3:22-4 procedurally barred defendant's ineffective assistance of counsel claims because defendant could have raised these claims on direct appeal. Substantively, the judge concluded that defendant's claims lacked merit, and defendant failed to establish a prima facie case of ineffective assistance of counsel or prejudice. The judge found that defendant offered nothing more than self-serving statements as to what a further investigation might have revealed to support a defense, there was no evidence supporting a diminished capacity defense, and defendant failed to establish that but for trial counsel's deficiencies, he would have received a better plea offer. The judge emphasized that the State was aware of the mitigating circumstances of the 1999 incident, the evidence did not support self-defense or passion/provocation manslaughter, defendant faced life imprisonment and received a favorable plea offer, and there was "a high probability" that a jury would have found defendant guilty based on his confession and eyewitness testimony, which would have resulted in a greater sentence. This appeal followed. On appeal, defendant presents the following arguments: POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND
THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE PCR COURT MISAPPLIED THE APPLICABLE PRINCIPLES OF "FUNDAMENTAL INJUSTICE" CONTROLLING THE PROCEDURAL BAR OF RULE 3:22-4.
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POINT II SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT
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ERRED IN NOT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT III DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POSTCONVICTION RELIEF.

We agree with defendant that his petition was not procedurally barred. "'Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). Our review of the record does not persuade us that the record was sufficiently developed for us to have considered defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to PCR proceedings where the necessary factual record can be established. See id. at 316. Further, the version of Rule 3:22-4 in effect at the time of the filing of defendant's PCR petition provided, in relevant part, as follows: Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds . . . (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

Rule 3:22-4(c) has been interpreted to allow courts to consider PCR petitions when the defendant alleges that his or her constitutional rights were seriously infringed during the conviction proceedings. State v. Mitchell, 126 N.J. 565, 585-86 (1992). Here, defendant argued, in part, that he was deprived of his Fourteenth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel when his attorney induced him into pleading guilty and counseled him not to appeal. The
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procedural bar of Rule 3:22-4 does not apply to these constitutional claims. Nonetheless, we are satisfied that defendant's PCR petition was properly denied. "For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that '[defense] counsel's performance was deficient," State v. Nunez-Valdez, 200 N.J. 129, 138 (2009), and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 125 N.J. at 463-64 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)); see also State v. Fritz, 105 N.J. 42, 58 (1987). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege 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); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "When a guilty plea is part of the equation, [the Court has] explained that '[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.'" Nunez-Valdez, supra, 200 N.J. at 138-39 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed.2d 873 (1996)) (second alteration in original). Further, when claiming that trial counsel inadequately investigated his or her case, the defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial. Defendant has failed to establish a prima facie claim of ineffective assistance of counsel. His claim of diminished capacity is nothing more than a bald, self-serving assertion. He did not provide an affidavit or certification from a psychiatrist or psychologist demonstrating that he suffered from a diminished capacity on the night of the shooting as a result of the 1999 incident.

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Also, the record does not support self-defense or passion/provocation manslaughter. Generally, "'the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.'" State v. Rodriguez, 195 N.J. 165, 171 (2008) (quoting N.J.S.A. 2C:3-4a). However, the use of force is not justified unless "'the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm[,]'" or if "'[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating . . . .'" Ibid. (quoting N.J.S.A. 2C:3-4b(2)). "Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid. Here, the victim had not been inside the store, and there is no evidence that he attacked or provoked defendant or engaged in any conduct that would have caused defendant to believe that he faced death or serious bodily harm and needed to act in self-defense. Even if the victim had so acted, there is no evidence that he or the other young men pursued defendant when defendant returned to the store. Thus, defendant could have avoided the necessity of using any force with complete safety by staying inside the store and calling the police. He also had ample time when he returned to the store to cool off. Instead, he retrieved the gun and killed an innocent young man. Further, the record does not support the mitigating factors that defendant sought. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Dalziel, 182 N.J. 494, 504-05 (2005). Defendant threatened serious harm when he returned to the scene of a heated dispute with a gun. The victim did not provoke or attack defendant, or induce or facilitate defendant's conduct. Even if the victim did so, murder was not a reasonable response to what occurred here. Finally, defendant was well aware of the NERA post-release parole supervision requirement. He had read and signed the NERA plea form, which notified him of the three-year period of parole supervision, and he was advised at the plea hearing that his sentence included three years of parole supervision upon release.

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Affirmed. 1 The plea forms included the "Supplemental Plea Form for No Early Release Act Cases," which indicated that there would be three years of parole supervision upon release. 2 Rule 3:22-4 was amended in 2010, subsequent to the filing of defendant's PCR petition. 3 U.S. Const. amend. XIV.

4 U.S. Const. amend. VI.

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