NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3988-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERNEST M. PIERCE, III, a/k/a ERNEST M. PIERCE,
Defendant-Appellant. ________________________
Submitted April 1, 2025 – Decided May 16, 2025
Before Judges Gooden Brown and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 15-10-0509.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Kayla Rowe, Designated Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (David M. Galemba, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Ernest M. Pierce III appeals from the November 14, 2022 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
Following a 2016 jury trial, defendant was convicted of first-degree
carjacking, N.J.S.A. 2C:15-2; second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); and two
counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(d).1 He was sentenced to an aggregate term of twenty years in prison,
subject to an eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2.
The convictions stemmed from an incident in which defendant, while high
on K2,2 believed that his stepdaughters, A.R.3 and D.A.; his friend, T.B.; and
1 Defendant was found not guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1), and third-degree terroristic threats, N.J.S.A. 2C:12- 3(b). 2 K2 or "Spice" is a synthetic form of marijuana that can cause "illusions, paranoia, catatonia, depersonalization, dissociation, and auditory and/or visual hallucinations." Rajashekar Reddy Yeruva et al., Synthetic Cannabinoids— "Spice" Can Induce a Psychosis: A Brief Review, Innovations in Clinical Neuroscience, Jan.-Feb. 2019 at 31-32. 3 We use initials to keep the victims' identity confidential. A-3988-22 2 T.B.'s friend, A.P., were setting him up for a robbery. As a result, defendant
stabbed A.R. repeatedly at her Salem City apartment, and demanded T.B.'s car
keys at knifepoint before fleeing in the vehicle. Defendant was later
apprehended at a nearby hospital being treated for a stab wound to his shoulder.
We affirmed defendant's convictions and sentence in an unpublished
opinion, and the Supreme Court denied certification. State v. Pierce, No. A-
4251-16 (App. Div. Mar. 11, 2019) (slip op. at 2), certif. denied, 239 N.J. 505
(2019). As we recounted in our opinion, the State's evidence revealed that T.B.
drove the group to A.R.'s apartment to socialize on the night of January 17, 2015.
At some point after the group arrived at A.R.'s apartment,
T.B. agreed to drive D.A. to a friend's house, so he and defendant walked down the ramp to the car. As T.B. entered the vehicle with keys in hand, another car drove alongside. Defendant abruptly turned and ran back toward the apartment. T.B. initially waited in his car for three or four minutes before going back inside himself. Once there, he heard a female voice say defendant had a knife and saw defendant accusing A.R. of "trying to [expletive] set [him] up[,]" and stabbing her. T.B. and A.P. ran out of the apartment as defendant pursued them, first, running toward A.P. who ran off down an alley, and then toward T.B.
T.B. was standing "right on the corner of the apartment building, like right outside by the ramp." As defendant approached, T.B. asked, "Yo [b]ro, what are you doing?" Defendant waved a knife at T.B. and
A-3988-22 3 yelled, "Give me the keys or I'll kill you." T.B. threw the keys at defendant and fled. Defendant drove off.
It suffices to say that A.R. and A.P. testified and confirmed that defendant stabbed his stepdaughter.
[Pierce, slip op. at 4 (alterations in original).]
Defendant's version of events differed vastly from this account.
Defendant testified:
A.P. attempted to rob him with a knife, and, in the course of the struggle, stabbed A.R. Defendant disarmed him and chased after A.P. When defendant realized he was stabbed in the shoulder, he pleaded with T.B. to take him to a hospital. T.B. refused, but threw defendant the keys to [the] car.
[Id. at 4-5.]
Defendant filed a timely PCR petition through private counsel asserting
ineffective assistance of trial and appellate counsel. Among other things,
defendant claimed trial counsel was ineffective for (1) "not seeking a mental
health evaluation for defendant," (2) "not traveling to or inspecting" the crime
scene, which impaired counsel's ability to "effectively cross[-]examine the
State's witnesses," and (3) failing to "sufficiently investigate and present certain
evidence at trial" that would have raised reasonable doubt as to whether
defendant acted purposefully.
A-3988-22 4 Following oral argument, the PCR judge issued an oral opinion and
entered an order denying defendant's PCR petition without an evidentiary
hearing. The judge found defendant failed to establish a prima facie case of
ineffective assistance of counsel (IAC). In rejecting defendant's IAC claim
based on trial counsel's purported failure to investigate, relying on State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), the judge found
defendant failed to provide "affidavits, certifications and the like" to support his
claim. Instead, according to the judge, defendant relied on "bald assertions."
The judge noted he was "left to speculate" because defendant failed to make
"even vague allegations" that "something could have been different" if counsel
had conducted more investigation.
Likewise, regarding the IAC claim based on trial counsel's "failure to seek
a mental health evaluation," the judge found no support for the claim. The judge
expounded that "[d]efendant's use of [K2], in and of itself, [would not]
necessarily . . . negate the culpable mental state . . . necessary" to sustain the
convictions. Further, defendant had not pursued any affirmative defenses
"[s]uch as diminished capacity or insanity . . . or a mental health deficiency"
that would show defendant "lack[ed the] . . . capacity to be able to participate in
his own defense." Additionally, there did not "appear to be a basis for such an
A-3988-22 5 evaluation" since defendant had not shown that he had a mental disease. The
judge concluded defendant failed to show that he was prejudiced by counsel's
"failure to seek a mental health evaluation" because the record was "barren" of
any evidence that doing so "would have in any way affected the case." This
appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I
THE PCR COURT ERRED WHEN IT DENIED PCR, BECAUSE TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO INVESTIGATE EVIDENCE THAT WOULD HAVE NEGATED THE STATE'S PROOFS ABOUT [DEFENDANT'S] PURPOSE IN TAKING THE VEHICLE.
POINT II
THE PCR COURT ERRED IN DENYING PCR, BECAUSE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PERSONALLY INSPECT THE LOCATION OF THE INCIDENT, UNDERMINING HIS UNDERSTANDING OF THE INCIDENT AND HIS ABILITY TO EFFECTIVELY CROSS- EXAMINE THE STATE'S WITNESSES.
POINT III
THE PCR COURT ERRED IN DENYING PCR, BECAUSE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK A MENTAL HEALTH EVALUATION FOR [DEFENDANT].
A-3988-22 6 POINT IV
AT A MINIMUM, [DEFENDANT] WAS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HE RAISED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
II.
We begin by setting out the guideposts that inform our review. "We
review the legal conclusions of a PCR judge de novo," State v. Reevey, 417 N.J.
Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion
standard the PCR court's determination to proceed without an evidentiary
hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).
"[W]here . . . no evidentiary hearing was conducted," as here, "we may review
the factual inferences the [trial] court has drawn from the documentary record
de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing
State v. Harris, 181 N.J. 391, 421 (2004)).
An evidentiary hearing is only required when (1) a defendant establishes
"a prima facie case in support of [PCR]," (2) the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)
A-3988-22 7 (providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's
allegations are too vague, conclusory or speculative"). Indeed, "[i]f the court
perceives that holding an evidentiary hearing will not aid the court's analysis of
whether the defendant is entitled to [PCR], . . . then an evidentiary hearing need
not be granted." Brewster, 429 N.J. Super. at 401 (omission in original) (quoting
State v. Marshall, 148 N.J. 89, 158 (1997)).
"To establish a prima facie case, [a] defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the facts alleged in the light
most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b). Moreover, a defendant must make this showing "by a preponderance of
the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). Rule 3:22-
2 recognizes five cognizable grounds for PCR, including a "[s]ubstantial denial
in the conviction proceedings of [a] defendant's [constitutional] rights," R. 3:22-
2(a), which encompasses the right to the effective assistance of counsel. State
v. Nash, 212 N.J. 518, 541-42 (2013).
To establish a prima facie claim of the denial of the effective assistance
of counsel as contemplated under R. 3:22-2(a), a defendant must demonstrate
that the performance of counsel fell below the objective standard of
reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687-88
A-3988-22 8 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the
outcome would have been different without the purported deficient
performance. Stated differently, a defendant must show that: (1) counsel's
performance was deficient; and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.
To satisfy the first prong, a defendant must "show[] that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and "that counsel's representation fell
below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.
"[I]n making the evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689. As such, a defendant "must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
"Merely because a trial strategy fails does not mean that counsel was
ineffective." State v. Bey, 161 N.J. 233, 251 (1999). "No particular set of
detailed rules for counsel's conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of legitimate decisions
A-3988-22 9 regarding how best to represent a criminal defendant." Strickland, 466 U.S. at
688-89. For that reason,
an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with [defense] counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial."
[State v. Castagna, 187 N.J. 293, 314-15 (2006) (second alteration in original) (citations omitted) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).]
To satisfy the second prong, "[t]he error committed must be so serious as
to undermine the court's confidence in the jury's verdict or result reached." State
v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694). This
prong generally requires that a defendant establish a "reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
Failure to meet either prong of the two-pronged Strickland/Fritz test
results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280
(2012) (citing State v. Echols, 199 N.J. 344, 358 (2009)). That said, "courts are
A-3988-22 10 permitted leeway to choose to examine first whether a defendant has been
prejudiced, and if not, to dismiss the claim without determining whether
counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J.
339, 350 (2012) (citation omitted) (citing Strickland, 466 U.S. at 697); see also
Cummings, 321 N.J. Super. at 170 (explaining the burden rests on the defendant
requesting an evidentiary hearing to "do more than make bald assertions that he
was denied the effective assistance of counsel").
Applying these principles, we agree with the PCR judge that defendant
failed to establish a prima facie IAC claim, and we discern no abuse of discretion
in the judge's denial of defendant's PCR petition without an evidentiary hearing.
In Points I and II of his brief, defendant argues his trial counsel was
ineffective because he failed to investigate: (1) the scene of the crime; (2) the
motives of the victims and witnesses the night of the incident; and (3) the
presence of "the mysterious car" that pulled up and made him suspicious. "The
failure to conduct an adequate pre-trial investigation may give rise to a claim of
[IAC]." State v. Russo, 333 N.J. Super. 119, 139 (App. Div. 2000). However,
"when a petitioner claims his [or her] trial attorney inadequately investigated
[the] case, [the petitioner] must assert the facts that an investigation would have
revealed, supported by affidavits or certifications based upon the personal
A-3988-22 11 knowledge of the affiant or the person making the certification." Cummings,
321 N.J. Super. at 170 (citing R. 1:6-6); see also Marshall, 148 N.J. at 270 ("PCR
'is not a device for investigating possible claims, but a means for vindicating
actual claims.'" (quoting People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990))).
Here, as the PCR judge pointed out, defendant's claims are unsupported.
Defendant provides no evidence that would have been uncovered, questions that
could have been asked, or insights that would have been gleaned with additional
efforts. Further, defendant's trial testimony undercuts his argument that trial
counsel failed to present his "perception of what happened" or to show that the
others engaged in a conspiracy to rob him. Trial counsel was limited to
presenting a defense theory that aligned with defendant's testimony about the
incident, a version of events the jury clearly rejected because it contradicted the
other witnesses' accounts. See State v. DiFerdinando, 345 N.J. Super. 382, 399
(App. Div. 2001) ("The jury is free to accept or reject, in whole or in part, any
aspect of testimonial evidence based on credibility.").
In Point III, defendant argues that a "mental health evaluation would
[have] explain[ed]" that he had a "break with reality" at the time of the crimes
and "was not acting purposely or knowingly," the mental state the State had to
prove. Again, defendant provides no evidence or indication that he told trial
A-3988-22 12 counsel about any mental health concerns during pre-trial preparation. See
Strickland, 466 U.S. at 691 ("[W]hat investigation decisions are reasonable
depends critically on . . . information [supplied by the defendant]."). Thus,
defendant's claim amounts to a "bald assertion[] that he was denied the effective
assistance of counsel." Cummings, 321 N.J. Super. at 170.
To the extent defendant impliedly argues trial counsel should have
pursued a possible diminished capacity defense, we reject the implication. See
N.J.S.A. 2C:4-2 ("Evidence that the defendant suffered from a mental disease
or defect is admissible whenever it is relevant to prove that the defendant did
not have a state of mind which is an element of the offense."). To be entitled to
a diminished capacity instruction, there must be evidence of (1) a diagnosed
mental disease or disorder, and (2) a connection between that mental condition
and the ability to form the requisite mental state for the crime charged. State v.
Reyes, 140 N.J. 344, 364-65 (1995). Indeed, no evidence of mental disease or
defect is "even admissible" unless it bears on whether the defendant had the
requisite mental state to commit the crime. State v. Watson, 261 N.J. Super.
169, 178-79 (App. Div. 1992).
Here, defendant provides no evidence of a diagnosed mental disorder to
support a diminished capacity defense or to justify a request for a mental health
A-3988-22 13 evaluation. See id. at 179-80 (explaining that defendants must present expert
opinion of a mental condition that impaired their cognitive faculties and
prevented them from forming the requisite mens rea to claim a diminished
capacity defense). Moreover, as "[i]ntoxication does not, in itself, constitute
mental disease," N.J.S.A. 2C:2-8(c), defendant's voluntary intoxication on K2
does not eliminate the requirement for a diagnosed mental disease or disorder.
See Reyes, 140 N.J. at 365 (holding that the interaction of the defendant's
voluntary intoxication, violent personality, and sadness due to a breakup was
insufficient for the defense); see also State v. Baum, 224 N.J. 147, 163 (2016)
(holding that the defense was available to a defendant who "was intoxicated
involuntarily due to . . . alcoholism and depression").
In any event, a diminished capacity defense would not have been a viable
trial strategy given defendant's testimony. Defendant testified before the jury
that the only negative side effects he experienced from smoking K2 were
withdrawal symptoms similar to those of opiates, specifically "shaking, hot
flashes, [and] cold flashes." While he acknowledged that those with lesser
tolerances to K2 "might go crazy" from smoking it because "everybody has a
different chemical reaction to it," defendant did not testify to experiencing
paranoia, hallucinations, or a break from reality. Instead, he testified that only
A-3988-22 14 A.P. started acting "weird" after smoking an additional blunt of K2 at the
apartment, "st[anding] in the corner and . . . watching everybody." Under the
circumstances, pursuing a diminished capacity defense would have undermined
defendant's credibility and damaged his case, which was solely premised on his
account that the others were setting him up for a robbery. Given the futility of
this defense, defendant has not shown either Strickland prong. See State v.
O'Neal, 190 N.J. 601, 619 (2007) (stating it is not IAC to pursue a meritless
claim).
To the extent defendant is asserting his attorney should have pursued a
voluntary intoxication defense, we likewise discern no merit to the argument.
To successfully raise such a defense, a defendant must demonstrate that he or
she was "so intoxicated" that he or she had no intent to commit an offense, "a
state of affairs [that] will likely exist in very few cases." State v. Cameron, 104
N.J. 42, 54 (1986) (quoting State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman,
J., concurring in result only and dissenting)). Stated differently, a defendant
must demonstrate "such a great prostration of the faculties [by intoxication] that
the requisite mental state was totally lacking." Ibid. (quoting Stasio, 78 N.J. at
495).
A-3988-22 15 Relevant factors include:
[T]he quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.
[Id. at 56.]
Here, the record shows defendant was not so intoxicated that he was
incapable of forming the requisite intent. Although defendant stated he shared
three "blunts" of K2 with A.P. and T.B., he provided clear and detailed
testimony of the incident. In addition, police described defendant as "upset" and
"despondent" at the hospital shortly after the incident, not erratic, confused, or
belligerent, and there was no evidence of any blood or urine tests performed.
Because the defense would not have been viable, defendant's IAC claim fails.
See O'Neal, 190 N.J. at 619.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we deem them without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3988-22 16