NOT FOR PUBLICATION WITHOUT THE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-0506-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LASHAN MATHIS, a/k/a
LASHAWN MATHIS,
____________________________
Submitted March 23, 2020 – Decided June 11, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 13-08-0792
and 14-06-0514.
Joseph E. Krakora, Public Defender, attorney for
appellant (Elizabeth H. Smith, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Lashan Mathis appeals from the denial of his post-conviction
relief (PCR) arguing:
[POINT I]
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING DEFENDANT'S PETITION FOR [PCR]
WITHOUT AN EVIDENTIARY HEARING AS
DEFENDANT HAS MADE A SUFFICIENT PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL TO WARRANT AN EVIDENTIARY
HEARING BASED ON COUNSEL'S FAILURE TO
VIGOROUSLY ADVOCATE ON HIS BEHALF.
We disagree and affirm.
Following the return of separate indictments charging defendant with four
counts of second-degree robbery, N.J.S.A. 2C:15-1(a)(2) and N.J.S.A. 2C:2-6,
(counts one, two, five, and eight);1 three counts of third-degree possession of a
weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (counts three, six, and nine);
and three counts of fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d) (counts four, seven, and ten) in the first indictment, and first-degree
armed robbery, N.J.S.A. 2C:15-1(a) (count one); second-degree possession of a
1
Count one of the first indictment charged defendant with a second-degree
robbery that he committed without the aid of his co-defendant. Counts two, five
and eight each charged defendant with second-degree robbery under an
accomplice liability theory pursuant to N.J.S.A. 2C:15-1(a)(2) and N.J.S.A.
2C:2-6.
A-0506-18T3
2
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree
possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count three);
third-degree theft, receiving stolen property, N.J.S.A. 2C:20-7(a) and N.J.S.A.
2C:20-2(a) (count four); third-degree theft, receiving stolen property, N.J.S.A.
2C:20-7.1(b) (count five); and third-degree certain persons not to be in
possession of a weapon, N.J.S.A. 2C:39-7(b) (count six) in the second
indictment, defendant pleaded guilty before Judge Marilyn C. Clark to counts
one, two, five and eight of the first indictment, charging him with second-degree
robbery, and count one of the second indictment, charging him with first-degree
armed robbery. Under the plea agreement, the State recommended that
defendant be sentenced to a seventeen-year prison term with eighty-five percent
parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A.
2C:43-7.2, on count one of the second indictment and concurrent ten-year
sentences on each of the four counts under the first indictment also subject to
the NERA.
Defendant now argues his trial counsel "never objected to the efforts of
the judge and the prosecutor to elicit [the] factual basis" for his plea to the
various robbery counts. He continues in his merits brief:
In failing to lodge objections to the questions of
the court and the prosecutor[,] trial counsel essentially
A-0506-18T3
3
failed to advocate on defendant's behalf, and pressured
[defendant] to plead guilty and to acknowledge the
'armed' element of the most serious offense. Trial
counsel's failure to protect . . . defendant effectively
deprived [him] of his constitutional right to effective
legal representation. The record is absent of any
explanation as to why counsel might have done this,
thus[] requiring a plenary hearing to inquire into those
facts and circumstances.
Because the PCR court did not hold an evidentiary hearing, we review
both the factual inferences drawn by the PCR judge from the record and the
court's legal conclusions de novo. State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test formulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at
687); then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. Under those standards, defendant failed to establish a
prima facie case of trial counsel's ineffectiveness.
A-0506-18T3
4
We first note trial counsel's questioning established much of the factual
basis from defendant. Although the judge and, at times, the prosecutor
interposed questions, there was nothing objectionable about that procedure. It
is incumbent upon the judge to question
the defendant personally . . . and [determine] by inquiry
of the defendant . . . that there is a factual basis for the
plea and that the plea is made voluntarily, not as a result
of any threats or of any promises or inducements not
disclosed on the record, and with an understanding of
the nature of the charge[s] and the consequences of the
plea.
[R. 3:9-2.]
"The trial court's [factual-basis] inquiry need not follow a 'prescribed or
artificial ritual.'" State v. Campfield, 213 N.J. 218, 231 (2013) (quoting State
ex rel. T.M., 166 N.J. 319, 327 (2001)). "[D]ifferent criminal charges and
different defendants require courts to act flexibly to achieve constitutional
ends." Ibid. (alteration in original) (quoting T.M., 166 N.J. at 327). Inasmuch
as the judge must ensure that defendant's plea was voluntarily made and not the
product of promises, threats or coercion, State v. O'Donnell, 435 N.J. Super.
351, 369 (App. Div. 2014), it was within the judge's discretion to allow
defendant's own counsel to attempt to elicit the factual basis in order to achieve
that end. And the further questioning by the judge and the prosecutor were
A-0506-18T3
5
required to establish the requisite elements of each offense, particularly the first-
degree robbery charge because defendant was not armed. The judge had to
ascertain if defendant participated in the robbery with knowledge that his
codefendant used a handgun in order to perpetrate the robbery, thus establishing
his guilt as an accomplice. See State v. Barboza, 115 N.J. 415, 422 (1989).
Judge Clark did just that and there were no grounds to object.
In his merits brief, defendant highlights claims made in his certification s
submitted in support of his PCR petition: "he was not provided with discovery,
did not understand the charges against him and was 'not in his right mind at the
time he entered the plea'"; and that his counsel told him if he did not take "the
plea offer for [an aggregate seventeen-year term he] would get [fifty-eight] years
and [his] sister would get [forty] years[.]" To the extent these claims deal with
issues relating to a PCR, and not to inadequate plea issues that are barred
because they should have been appealed, see R. 3:22-4(a), they are bald and did
not establish a prima facie case requiring an evidentiary hearing, R. 3:22-10(b);
State v. Preciose, 129 N.J. 451, 462-63 (1992).
A "defendant must allege specific facts and evidence supporting his
allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make
bald assertions that he was denied the effective assistance of counsel ," State v.
A-0506-18T3
6
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "Defendant may not
create a genuine issue of fact, warranting an evidentiary hearing, by
contradicting his prior statements without explanation." Blake, 444 N.J. Super.
at 299. Defendant's bald averments, belied by the record, do not establish a
prima facie claim. And, contrary to defendant's argument, an evidentiary
hearing is not to be used to explore PCR claims. See State v. Marshall, 148 N.J.
89, 157-58 (1997). As such, an evidentiary hearing was properly denied.
Judge Clark thoroughly reviewed the terms of the plea agreement and
defendant's sentencing exposure. The factual basis for each charge established
that defendant understood each; indeed, near the end of the plea colloquy, after
defendant denied that he had "any questions about what [had] gone on . . . in
court" that day, the judge asked defendant, "Is there anything that you did not
understand?" Defendant answered, "[n]o."
The judge noted a report of a "competency evaluation from Ann Klein
Forensic Center," dated sixteen days prior to the plea hearing, concluded
defendant was competent. "Based on that report and several other reports that
were done prior to [the Ann Klein] report," defense counsel confirmed defendant
did not dispute the competency finding. The judge also inquired about
medications defendant was taking for his psychiatric condition and ascertained
A-0506-18T3
7
that the prescribed drugs helped defendant's understanding. The judge observed:
"[I]t appears that you've understood everything that's gone on here today based
upon my back[-]and[-]forth questioning of you and your answers to both your
attorney and the [p]rosecutor." Defendant agreed that it was "fair to say" he
understood "everything" that occurred during the plea hearing. Indeed, he
confirmed several times during the colloquy that he understood the judge's
explanations, including the plea terms and his sentencing exposure. We discern
no ineffective assistance of counsel issue that arose from defendant's mental
health condition. See State v. Norton, 167 N.J. Super. 229, 232 (App. Div. 1979)
(finding the defendant was "capable of understanding and voluntarily pleading
guilty," despite his psychiatric problems, given he "evinced a good memory for
the circumstances in which the offenses occurred" and psychiatric reports from
his doctor "pronounced him competent"); State v. Colon, 374 N.J. Super. 199,
222 (App. Div. 2005) (rejecting defendant's argument that he "lacked the
capacity" to enter a guilty plea because he was taking Depakote at the time of
the proceedings, given that the court fully explored defendant's mental state at
the time of the plea and determined defendant was acting "knowingly,
voluntarily and intelligently").
A-0506-18T3
8
As Judge Clark noted, defendant's factual-basis colloquy evidenced his
recollection of each of the discrete robberies, interjecting details about most.
Further, there is no evidence of any threats or promises, or that defendant did
not enter into the plea agreement voluntarily. Defendant admitted as much
during the plea hearing.
Defendant's remaining contentions are without sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(2). We note only that he admitted
several times he reviewed the surveillance video provided in discovery and
advanced no argument how the lack of discovery impacted on his decision to
plead guilty.
In that this PCR petition involves a plea agreement, 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, [defendant] would not have [pleaded] guilty and would
have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). The plea agreement
called for a seventeen-year prison term with eighty-five percent parole
ineligibility. Judge Clark advised defendant he faced a maximum ordinary term
of ten years subject to the same parole ineligibility period on each of the four
A-0506-18T3
9
second-degree robbery counts, all of which could have run consecutive.2
Moreover, the judge told defendant, he faced up to twenty years on a regular
term and, in that he was eligible to be sentenced to an extended term, his
maximum exposure was life imprisonment. Under the circumstances, even if
plea counsel was ineffective—which we do not determine or suggest—
defendant has failed to show that "but for counsel's [alleged] errors, [he] would
not have [pleaded] guilty and would have insisted on going to trial." See ibid.
(quoting DiFrisco, 137 N.J. at 457).
Affirmed.
2
The second-degree robberies took place on July 20, 2012, December 18, 2012,
January 3, 2013, and January 4, 2013, all against different victims in different
stores.
A-0506-18T3
10
STATE OF NEW JERSEY VS. LASHAN MATHIS (13-08-0792 AND 14-06-0514, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion