STATE OF NEW JERSEY VS. OSCAR CORTEZ (16-02-0472, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4438-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSCAR CORTEZ, a/k/a
OSCAR E. CORTEZ,

Defendant-Appellant.
_______________________

Submitted September 30, 2020 – Decided October 15, 2020

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-02-0472.

Peter D. Russo, attorney for appellant.

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Barbara A.
Rosenkrans, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Oscar Cortez appeals from a May 1, 2019 order denying his

petition for post-conviction relief (PCR) after an evidentiary hearing. We

affirm.

Defendant, a permanent United States resident born in Colombia, was

indicted by a grand jury for third-degree possession of a controlled dangerous

substance (heroin), second-degree possession of heroin with the intent to

distribute, third-degree possession of heroin with the intent to distribute on

school property or within 1000 feet of school property, second-degree

possession of heroin with the intent to distribute within 500 feet of a public

housing facility, park or building, and fourth-degree resisting arrest.

Defendant pled guilty to possession of heroin with intent to distribute in

a school zone and in exchange for his plea the State recommended a

probationary sentence and dismissal of the remaining charges. Judge John I.

Gizzo sentenced defendant in accordance with the plea agreement to a three-

year probationary term and assessed applicable fines and penalties.

At some point undisclosed in the record, immigration authorities instituted

removal proceedings against defendant. Defendant filed a timely PCR petition

alleging his trial counsel was ineffective because he failed to: 1) explore

potential "mental health defenses," 2) set forth a diminished capacity defense,

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and 3) advise him to seek the advice of an immigration attorney prior to entering

his plea.

Defendant supported his petition with an affidavit of his plea counsel in

which he admitted that defendant's girlfriend advised him that defendant had

"mental health issues." Counsel also admitted he did not explore defendant's

"mental health issues at the time of the plea" or "ask him if he was supposed to

be on psychiatric medication or if he had taken any at the time of the plea."

Defendant also attached a report from Dr. Grigory S. Rasin, M.D.

In his report, Dr. Rasin indicated he reviewed the plea transcript and

certain of defendant's medical records, including a January 7, 2018

psychological evaluation from Robert Johnson, M.A., LPC, LCADC, a certified

counselor. Dr. Rasin also conducted a psychiatric examination of defendant at

which time defendant advised Dr. Rasin that he used marijuana and cocaine on

the day he pled guilty and that his prescribed seizure medication made him

"stupid."

After considering these materials, and based on his evaluation, Dr. Rasin

concluded that defendant was "mentally and cognitively impaired" at his plea

hearing and was unable to "process the proceeding" including the fact that he

would likely be deported as a consequence of his guilty plea. He further opined

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that due to defendant's low IQ, use of illegal substances in combination with his

prescribed medication on the day of his plea, he "was highly suggestible and

influenced by his attorney in admitting the guilt."

Judge Gizzo granted defendant's request for an evidentiary hearing where

defendant's plea counsel testified. The judge also considered the transcript from

the plea hearing and Dr. Rasin's report.

In a May 1, 2019 written opinion, Judge Gizzo concluded that defendant

failed to satisfy either prong of the two-part test for ineffective assistance of

counsel detailed in Strickland v. Washington, 466 U.S. 688 (1984), and adopted

by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The

court determined that: 1) defendant's plea counsel did not have a reason to

conclude from the facts and circumstances surrounding his representation that

defendant suffered from a mental illness that prevented him from entering a

voluntary and knowing plea, 2) defendant was fully informed regarding the

immigration consequences of his plea, including the risk of removal, by plea

counsel and the court, and 3) there was no support in the record for a diminished

capacity defense.

On appeal, defendant argues:

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 POINT I

IT WAS OBJECTIVELY DEFICIENT FOR
[DEFENDANT'S] ATTORNEY TO BE AWARE OF
MENTAL HEALTH ISSUES AND NOT AT LEAST
OBTAIN RECORDS AND EXPLORE POSSIBLE
DEFENSES.

POINT II

THE COURT ERRED BY GIVING NO WEIGHT TO
DR. RASIN'S REPORT BY DISMISSING IT AS
"SPECULATIVE"; THE DEFENDANT HAD
MENTAL [HEALTH] ISSUES THAT CLOUDED HIS
JUDGMENT.

POINT III

THE COURT ERRED BY HAVING THE CLIENT'S
ATTORNEY ACT AS MEDICAL DOCTOR AND
DECIDE THAT THE DEFENDANT DID NOT HAVE
A MENTAL ISSUE.

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see

also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court

has conducted an evidentiary hearing on a petition for PCR, we necessarily defer

to the trial court's factual findings."). Where an evidentiary hearing has been

held, we should not disturb "the PCR court's findings that are supported by

sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576

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(2015) (citations omitted). We review any legal conclusions of the trial court

de novo. Nash, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004).

Against this standard of review, we find no merit to the contentions raised by

defendant and affirm substantially for the reasons set forth by Judge Gizzo in

his written decision. We offer the following additional comments to amplify

our decision.

The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant "the

right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541

(2013) (quoting Strickland, 466 U.S. at 686). Under the first prong of the

Strickland standard, a petitioner must show counsel's performance was deficient.

Ibid. It must be demonstrated that counsel's handling of the matter "fell below

an objective standard of reasonableness," id. at 688, and that "counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," id. at 687.

Under the second prong of the Strickland test, a "defendant must show

that the deficient performance prejudiced the defense." Ibid. A defendant must

demonstrate there is a "reasonable probability that, but for counsel's

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unprofessional errors, the result of the proceeding would have been different. "

Id. at 694.

In the context of a PCR petition challenging a guilty plea based on the

ineffective assistance of counsel, the second prong is established when the

defendant demonstrates a "reasonable probability that, but for counsel's errors,

[the defendant] would not have pled guilty and would have insisted on going to

trial," State v. Nuñez–Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)

(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)), and that "a decision to

reject the plea bargain would have been rational under the circumstances,"

Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

A petitioner must establish both prongs of the Strickland standard to

obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 687;

Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. A failure to satisfy either prong of

the Strickland standard requires the denial of a PCR petition. Strickland, 466

U.S. at 700.

With respect to defendant's first argument, Judge Gizzo found that at no

point during plea counsel's representation did counsel "feel any reason to believe

that [d]efendant suffered from any mental issues" that would render him unable

to enter a knowing and voluntary plea. The court's finding was amply supported

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by the record, which included testimony from plea counsel that he met with

defendant at least six times during his representation and defendant actively

participated in his defense. Plea counsel further testified that had he observed

defendant engage in any concerning behavior, he would have informed the court

and sought a medical evaluation as he did in other cases.

In addition, where, as in this case, a defendant claims that his or her trial

attorney "inadequately investigated his case, he 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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

"[B]ald assertions" of deficient performance are insufficient to support a PCR

application. Ibid.

Before the PCR court defendant failed to identify any specific and relevant

medical record that existed at the time he sold heroin near a school, or when he

pled guilty, that would have informed counsel's consideration or affected the

outcome of the proceeding. In fact, the record fails to include an affid avit or

certification from defendant supporting any of his claims.

Further, "representations made by a defendant . . . concerning the

voluntariness of the decision to plead, . . . constitute a 'formidable barrier' which

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defendant must overcome." State v. Simon, 161 N.J. 416, 444 (1999) (quoting

Blackledge v. Allison, 431 U.S. 63, 74 (1977)). "That is so because

[defendant's] '[s]olemn declarations in open court carry a strong presumption of

verity.'" Ibid. (quoting Blackledge, 431 U.S. at 74.)

Here, Judge Gizzo explained that he presided over defendant's plea

hearing and was "satisf[ied] that [d]efendant entered a knowing and voluntary

plea" and characterized defendant as "alert, lucid and responsive." The judge

further explained that defendant was primarily concerned with receiving a non -

custodial term and "not once objected . . . between plea and sentencing" to the

favorable plea offer or sought to proceed to trial.

Defendant's reliance on State v. O'Donnell, 435 N.J. Super. 351 (App.

Div. 2014), for the proposition that "an attorney's representation cannot be

considered effective if he . . . is aware that his client has mental health issues

but does not explore them" is misplaced as that case is factually distinguishable.

In O'Donnell, defendant's counsel previously advised defendant she had a

colorable diminished capacity defense to a murder charge based on a psychiatric

report that concluded defendant's "mental capacity was so impaired that she was

unable to engage in purposeful conduct." Id. at 362. The night before the plea

hearing, however, and after failing to ensure completion of a second psychiatric

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examination, counsel allegedly advised defendant to instead plead guilty to

murder with a thirty-year sentence and a thirty-year period of parole ineligibility

or she would "get life." Id. at 364-65.

After the trial court denied defendant's PCR petition and motion to

withdraw her guilty plea, we remanded the matter for an evidentiary hearing on

defendant's PCR claim. We concluded that "defendant presented a plausible

claim, supported by the court's finding of [plea counsel's] misrepresentation and

dereliction of professional duty, that her [plea counsel] failed to confer with her

to obtain a second expert opinion as promised and urged her to plead guilty

without adequate explanation . . . ." Id. at 376.1

1
The federal cases cited by defendant, see Newman v. Harrington, 726 F.3d
921 (7th Cir. 2013), Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005), and
Saranchak v. Beard, 616 F.3d 292 (3d Cir. 2010), are similarly distinguishable.
In Newman, unlike here, defendant's "petition was supported by a wealth of
evidence, including [a psychologist report] who opined that [defendant] had
cognitive deficits, specifically that he [was] moderately to mildly mentally
retarded" and was unfit to stand trial. Defendant's psychologist also stated that
defendant's "cognitive deficits [were] readily apparent" and "should have been
apparent to anyone who attempted to have a conversation with [him] . . . ."
Newman, 726 F.3d at 923. In Miller, defendant suffered from organic brain
syndrome, post-traumatic stress syndrome and difficulties with cognitive
function resulting from a car accident. Miller, 420 F.3d at 359. Instead of
calling an expert witness at trial to attest to these facts, counsel instead relied
upon testimony from defendant and her husband. Id. at 361-362. Finally, in
Saranchak, the court similarly concluded defendant's trial counsel was
ineffective for relying on lay testimony at defendant's degree of guilt hearing in

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 The record here bears no similarity to that before the O'Donnell court.

First, unlike in that case, Judge Gizzo conducted an evidentiary hearing and

made comprehensive factual findings. Based on those findings, Judge Gizzo

correctly concluded there was no support in the record for a diminished capacity

defense and plea counsel was not derelict in his professional duties under the

performance prong of the Strickland test at any point in his representation of

defendant. Nor did plea counsel here mispresent any fact to defendant or

improperly recommend defendant plead guilty.

As to defendant's second point, and applying the aforementioned standard

of review, we have no reason to disturb Judge Gizzo's finding that Dr. Rasin's

opinions were speculative. Dr. Rasin opined on defendant's medical condition

over two years after the plea hearing. Although we recognize the necessary

retrospective nature of such reports, the record here is devoid of any medical

documentation contemporaneous with the commission of the offense or

defendant's plea that support Dr. Rasin's diagnoses or which identify the specific

medical condition defendant suffered from that diminished his ability to form

support of defendant's diminished capacity defense based on excessive alcohol
consumption rather than offer expert testimony. Saranchak v. Beard, 616 F.3d
at 308. As is readily apparent, the record of defendants' mental health issues,
and counsel's deficient performance and the resulting prejudice, in those cases
bears no resemblance to the facts and circumstances here.
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the mens rea for the school zone offense to which he pled guilty or from entering

a knowing and voluntary plea.

We also note that although Dr. Rasin stated that defendant self-reported

marijuana use the day of the plea hearing, defendant denied such use during the

plea hearing and he advised Robert Johnson that he stopped using marijuana

three years prior to January 7, 2018 and "had never had a dirty urine since." Mr.

Johnson also concluded that at the time of his January 7 evaluation, defendant

"showed remarkably good insight and his judgment seemed to be intact."

We also reject defendant's third point that defendant improperly acted as

a "medical doctor." As Judge Gizzo concluded, plea counsel's representation of

defendant was consistent with professional norms as required by Strickland.

Finally, we are satisfied that defendant failed to establish that there was a

"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S at 669, 694.

In sum, Judge Gizzo's conclusion that defendant failed to satisfy either the

performance or prejudice prong of the Strickland test is amply supported by the

record. To the extent we have not addressed any of defendant's arguments, it is

because we conclude they are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

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Affirmed.

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