State v. Boyd

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARDELL BOYD, Defendant-Appellant.

DOCKET NO. A-5372-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted June 25, 2019

September 17, 2019

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Rothstadt and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 13-07-2228.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda Anne Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cardell Boyd appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant argues that the PCR judge should have ordered an evidentiary hearing. According to defendant, he established a prima facie case of ineffective assistance of counsel (IAC) based upon his plea counsel's failure to adequately advise him about Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, and her failing to investigate defendant's cognitive limitations before advising him to accept the plea offer. For the reasons that follow, we vacate the denial of his petition and remand for an evidentiary hearing.

Defendant pled guilty to an Accusation that charged him with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to his plea agreement, on November 1, 2013, the sentencing judge imposed a 270-day period of jail time, required defendant to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, and subjected defendant to PSL.

Prior to entering his plea on July 24, 2013, defendant signed a plea agreement containing a supplement that addressed PSL. By circling "yes" next to each of the PSL-related questions, defendant confirmed that he knew PSL was "in addition to any other sentence," "that upon release from incarceration [he would] be supervised by the Division of Parole for at least [fifteen] years and [would] be subject to provisions and conditions of parole" that may prevent him from living "in a home with minor children," that if he violated PSL he could be incarcerated, and that he could be convicted for any violation of PSL, which could result in an additional sentence being imposed for "up to [eighteen] months."

During defendant's plea hearing, defense counsel confirmed that she "had an opportunity to review the Plea Forms" and defendant "initialed each page and signed the last pages of each section." The plea judge then reviewed the terms of the plea agreement with defendant. The judge stated, among other things, "[y]ou'd have to serve [PSL]" and confirmed that defendant would be placed on PSL "immediately" after sentencing.

The judge also confirmed that defendant read the plea agreement, that it reflected his plea "deal," and that its terms were "written accurately and completely in the plea papers that [defendant] and [his] Attorney filled out." In response to the judge's questioning, defendant acknowledged that he read "through those questions very carefully and check[ed] all the answers." The judge also confirmed with defendant that "after [his] Attorney went over everything with" defendant, he understood and signed the agreement. Defendant also stated that he was satisfied with his lawyer's services.

Prior to being sentenced, defendant was evaluated at the Avenel Adult Diagnostic and Treatment Center (the Center). During his evaluation, he stated that he dropped out of school in the ninth grade but until then he attended regular education classes. He also stated that he was previously medicated for a period of time for depression and anxiety following an earlier arrest. The results of the examination indicated that while defendant was not amenable to sentencing as a sex offender, he was "testing, at best, in the 'Below Average' range of intellectual ability." The report noted that "[n]either speech nor thought processes showed evidence of loose associations, nor other symptomatology that would confirm the presence of a psychologic thought disorder."

At sentencing, PSL was initially mentioned by the prosecutor who clarified that defendant could not be sentenced to probation because he was being placed on PSL. The only other reference to PSL was when the sentencing judge stated defendant was "subject to [PSL]" as part of his sentence.

Defendant did not appeal from his conviction or sentence. However, in July 2016 he filed his first petition for PCR. In his petition, defendant argued that "the terms of PSL were not explained to [him]" and he "was not aware that programs such as Drug Court would be unavailable." A brief and amended petition were later submitted on behalf of defendant in which he expanded upon his earlier argument about plea counsel not "adequately" explaining PSL to him. He also contended he was entitled to an evidentiary hearing and that his petition was not procedurally barred.

In his amended petition, defendant also asserted that he was diagnosed with a learning disability and attended special education classes while in school. He certified that he had been diagnosed with various mental health disorders, including depressive and anxiety disorders, post-traumatic stress disorder, and antisocial personality disorder. He also verified that his plea counsel "advised [him] that [he] had not paid her sufficient money for her to proceed to trial or to conduct any investigations in [the] matter." She also allegedly advised him to either accept the plea or proceed to trial with representation from the Public Defender's Office.

As to his understanding about PSL, defendant stated the following:

Defense counsel never explained to me about [PSL]. She did not explain that it was a mandatory requirement for the offense that I pled guilty to, and she did not explain that it was one of the conditions of my plea deal. She also did not explain PSL when going over the plea form with me.

I also did not understand at the time that I accepted the plea deal the requirements or the implications of PSL. The court never explained PSL in a way that I understood. The court only said at the plea hearing that "You'd have to serve parole supervision for life." Therefore, I did not know at the time that I accepted the plea deal that I would be subject to PSL. I learned that I was subject to PSL on the day of sentencing. If I had known that PSL was a condition of my plea deal I would not have accepted it.

On December 15, 2017, the parties appeared before the PCR judge for oral argument. After considering the parties' contentions, on January 11, 2018, the judge denied defendant's petition for the reasons stated in a comprehensive nineteen-page written decision he issued on the same date. In addressing the first prong of the two-pronged test for PCR articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), the PCR judge considered defendant's contentions about not being advised of PSL.

The judge cited to State v. Schubert, 212 N.J. 295, 308 (2012) and recognized that "PSL is a direct consequence of a plea; therefore, a defendant must be informed of such consequences." He distinguished defendant's situation from that of the defendant in State v. J.J., 397 N.J. Super. 91, 100 (App. Div. 2007), who despite having signed a plea form disclosing PSL, was found to have not been adequately informed about the effect of PSL that included a prohibition against the defendant living with "his new wife and her children." The judge determined that defendant here did "not point to a specific consequence of PSL that was not contemplated by the plea agreement, only that he did not know of the existence of PSL as part of his plea agreement."

The PCR judge concluded defendant "was informed that PSL was a condition of his plea" because "the record evidences that [it] was discussed with defendant when he signed his plea form." In reaching that conclusion, the judge relied upon defendant's circling the answers to the questions about PSL on the plea form, his plea counsel's statement that she reviewed the plea form and defendant initialed and signed it, the plea judge having told defendant he would have "to serve [PSL]," and the fact that defendant confirmed the plea form was accurate and that he read it and understood its contents. The judge also cited a reference to PSL that was made during sentencing. The judge stated that although "every minutia of [PSL] was not explained by the [plea] judge . . . [he was] satisfied the [plea] judge engaged in sufficient inquiry to ensure that defendant read and understood the terms of his plea and adequately discussed it with his attorney."

The judge also found that defendant failed to meet the second prong of Strickland, which required defendant to demonstrate there was reasonable probability that but for counsel's deficient performance, the outcome of the proceedings would have been different. He concluded that plea counsel did not commit any professional errors and noted that defendant failed to offer any facts that established he suffered "legal prejudice" by accepting the plea. He found the record showed that defendant entered into the plea agreement "knowingly, intelligently, and voluntarily," and testified that he was satisfied with counsel's representation. He concluded that defendant failed to establish a prima facie case of IAC based on his allegations about PSL.

Turning to defendant's argument that counsel failed to investigate his mental health, the judge observed that defendant did not provide any documentation...