NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1215-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY J. LADD, a/k/a
TIM J. LADD,
Defendant-Appellant.
__________________________________________
Submitted March 9, 2017 – Decided August 31, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
11-06-1019.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Roberta DiBiase,
Senior Assistant Prosecutor, on the brief;
Samuel Marzarella, Chief Appellant Attorney,
of counsel).
PER CURIAM
Defendant appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For the
reasons that follow, we affirm.
In October 2011, defendant pled guilty to first-degree
robbery, N.J.S.A. 2C:15-1, and, in December 2011, was sentenced
to a twelve-year prison term, subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2. He did not file a direct appeal.
The facts underlying the plea were as follows. Defendant
entered a pharmacy and, while the pharmacist was removing a
bottle of Oxycodone from the safe, climbed over the counter,
wielded a knife, and grabbed the bottle. As he ran for the
exit, an employee was able to physically detain defendant until
the police arrived. The incident was recorded on a surveillance
tape.
In September 2014, defendant filed a petition for PCR as a
self-represented litigant. He attested that, at the time of the
incident, he was experiencing withdrawal symptoms from
"prescribed medication," which altered his mental capacity.
When before the PCR court, PCR counsel argued plea counsel had
been ineffective for failing to advance the argument of
intoxication or diminished capacity at the time of the incident.
Defendant contended had this argument been made during plea
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negotiations, he would have secured a more favorable plea
agreement.
In addition, defendant contended plea counsel failed to
argue during sentencing the existence of mitigating factors one,
N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor
threatened serious harm), and four, N.J.S.A. 2C:44-1(b)(4)
(there were substantial grounds tending to excuse or justify the
defendant's conduct, though failing to establish a defense). As
to the latter factor, defendant maintained his addiction to
substances caused his criminal conduct. Defendant argued had
plea counsel advocated these mitigating factors applied, his
sentence would have been lower.
On October 15, 2015, the PCR court entered an order denying
defendant's petition.
Defendant presents the following issues for our
consideration:
POINT I – THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE MATTER
REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II – THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE IT
VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
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POINT III – THE ORDER DENYING POST-
CONVICTION RELIEF SHOULD BE REVERSED
BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL
WAS INEFFECTIVE UNDER THE STRICKLAND TEST,
DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS
RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL
JUSTICE TO HAVE ALL MITIGATING FACTORS
DELINEATED AT SENTENCING WAS VIOLATED.
Defendant reprises the same arguments on appeal as he did
before the PCR court. We are not persuaded by them and affirm.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
the two-prong test of establishing that: (l) counsel's
performance was deficient and he or she made errors so egregious
counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the
defect in performance prejudiced defendant's rights to a fair
trial such that there exists a "reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, supra, 466
U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693,
698. When a defendant has pled guilty, the second prong
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requires the defendant show "there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty but 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)).
As for defendant's claim there was a viable defense of
diminished capacity, this particular defense requires evidence
the defendant suffered from a mental disease or defect that
precluded him from having the requisite state of mind that is an
element of the offense. N.J.S.A. 2C:4-2. This defense mandates
the defendant present "evidence of a mental disease or defect
that interferes with [his] cognitive ability sufficient to
prevent or interfere with the formation of the requisite intent
or mens rea," State v. Galloway, 133 N.J. 631, 647 (1993), and
"that a connection is necessary between that mental disease or
defect and the defendant's ability to form the required mental
state for the crime charged." State v. Reyes, 140 N.J. 344, 364
(1995). Defendant has not proffered any evidence he suffered
from diminished capacity at the time he committed the robbery.
Intoxication, including drug-induced intoxication, "does
not, in itself, constitute mental disease within the meaning of"
N.J.S.A. 2C:4-2. N.J.S.A. 2C:2-8(c). However, voluntary
intoxication can provide a defense if the intoxication was
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sufficient to cause a "prostration of faculties," meaning the
intoxication must be of an "extremely high level," rendering the
defendant incapable of forming an intent to commit the crime.
State v. Cameron, 104 N.J. 42, 54 (1986).
Here, defendant is not claiming he was intoxicated during
the commission of the offense. In fact, he claims he was
withdrawing from a substance, and his symptoms of withdrawal
caused him to commit the crime. Accordingly, there is no basis
plea counsel was ineffective for failing to advocate he was
under the influence of any substances during the incident.
Finally, we note that, during sentencing, in her effort to
obtain as low a sentence as possible, plea counsel did argue
mitigating factors one and four applied. She stated:
[S]ince you have the benefit of the
presentence report, you understand Mr.
Ladd's background. He comes from a bad
childhood. It was rampant with abuse, all
sorts of abuse. He was in foster homes. He
had juvenile issues, but never a drug issue
as a juvenile.
His drug issue began when he was seriously
injured during a work-related accident.
. . . Doctor prescribed Oxycodone, doctor
prescribes Percocets. And, unfortunately,
some people become addicted. . . .
And once you are addicted to the drug, then
that's going to lead to either your death or
your criminal activity. In Mr. Ladd's case,
it did lead to his criminal activity. . . .
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Your Honor is familiar with the facts of
this case. On paper, it looks really bad.
He walks into a drug store wielding a knife,
jumps over a counter. . . . [Y]ou see the
victim's statement[.] I don't think at
anytime did the victim believe that the
intended victim was really him. I think he
believed my client just wanted the drugs.
He didn't want to hurt the pharmacist. He
wanted the drugs. . . .
Again, we have to decide is he a violent man
or is he a drug-addicted desperate man? I
would go with the desperation is what caused
the criminal activity, not a violent
criminal.
We are satisfied from our review of the record that
defendant failed to make a prima facie showing of
ineffectiveness of plea counsel within the Strickland-Fritz
test. Defendant failed to present any evidence he had a viable
diminished capacity defense, and there is no evidence he was
under the influence of any substance at the time of the offence.
He faults counsel for not presenting reasons why mitigating
factors one and four applied, when in fact she did so.
Accordingly, the PCR court correctly concluded that an
evidentiary hearing was not warranted. See State v. Preciose,
129 N.J. 451, 462-63 (1992).
Affirmed.
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STATE OF NEW JERSEY VS. TIMOTHY J. LADD(11-06-1019, OCEAN COUNTY AND STATEWIDE)
Combined Opinion