State of New Jersey v. Regina A. Wallace

• Court: New Jersey Superior Court Appellate Division
• Decided: July 8, 2024
• Docket: A-1719-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1719-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINA A. WALLACE,

Defendant-Appellant. ________________________

Submitted June 18, 2024 – Decided July 8, 2024

Before Judges Mawla and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 14-03-0131.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the briefs).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Regina Wallace appeals an October 13, 2022 order denying her

petition for post-conviction relief (PCR). We affirm substantially for the

reasons set forth by Judge J. Adam Hughes in his cogent written decision

accompanying the order.

I.

On October 31, 2012, defendant struck her sleeping mother in the head

and torso with a pickaxe then left her unattended and bleeding. Defendant's

mother died from the injuries. Defendant was charged with first-degree murder,

N.J.S.A. 2C:11-3(a)(2) (count one), and possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count two).1

On March 6, 2014, defendant pleaded guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1). The State recommended a thirty-year

sentence subject to twenty-five-and-a-half years of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. During the plea

allocution, defendant retained the right to request a lesser sentence based on her

mental health history.

1 The record is inconsistent as to whether the weapons charge against defendant was in the second- or third-degree. Our analysis is unchanged under either gradation. A-1719-22 2 A sentencing hearing proceeded on May 2, 2014, at which defendant and

several of her family members testified. The sentencing court also reviewed the

report from Dr. Kenneth Weiss as to his evaluation of defendant, along with her

history of mental illnesses and hospitalizations. After the sentencing court

considered the totality of the evidence in light of the applicable aggravating and

mitigating factors under N.J.S.A. 2C:44-1, defendant was sentenced to a term of

twenty years with seventeen years of parole ineligibility, as required by NERA.

The sentencing court found the credible evidence supported a finding of

aggravating factors three, N.J.S.A. 2C:44-1(a)(3)—the risk that defendant will

commit another offense—and nine, N.J.S.A. 2C:44-1(a)(9)—the need to deter

defendant and others from violating the law. The court applied mitigating

factors four, N.J.S.A. 2C:44-1(b)(4)—substantial grounds tending to excuse or

justify the defendant's conduct, though failing to establish a defense—and seven,

N.J.S.A. 2C:44-1(b)(7)—defendant's lack of prior criminal history. It also

weighed mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11)—that imprisonment

of the defendant would entail excessive hardship.

The sentencing court was satisfied defendant's sentence would provide her

with the opportunity to receive extensive treatment for her mental illnesses prior

to release on probation. The court also found the aggravating and mitigating

A-1719-22 3 factors were balanced and, therefore, sentenced defendant to twenty years. The

twenty-year term of incarceration was in the midrange between the ten- and

thirty-year sentences recommended under the sentencing guidelines and less

than that sought by the State. Defendant appealed the sentence.

We affirmed defendant's term of incarceration on the sentencing oral

argument (SOA) calendar. State v. Wallace, No. A-0440-14 (App. Div. Jan. 13,

2015). On October 17, 2017, defendant filed her first PCR petition which she

subsequently withdrew on November 15, 2019.2 On January 26, 2021 defendant

filed a second PCR petition. After oral argument, Judge Hughes entered an

October 13, 2022 order accompanied by a thirteen-page written decision

denying defendant's PCR petition.

The judge found defendant filed her second PCR petition more than one

year after her first PCR petition was withdrawn in violation of Rule 3:22-

12(a)(2).3 The judge also found the refiled PCR petition was time barred by the

2 We note that the record is inconsistent as to the dates of previous filings. This opinion uses the dates as set forth in Judge Hughes's decision. Our analysis is unchanged under either timeline. 3 Rule 3:22-12(a)(2) provides that no second or subsequent petition shall be filed more than one year from the events enumerated in (A), (B) or (C).

A-1719-22 4 five-year limitation under Rule 3:22-12(a)(1),4 even if he were to consider it a

first petition because of the COVID-19 pandemic. He also concluded that

defendant's PCR petition was procedurally barred under Rule 3:22-4 since she

had the opportunity to litigate the issues on direct appeal.

Nonetheless, the judge addressed the merits of defendant's PCR petition,

finding an evidentiary hearing was not necessary based on the record before the

sentencing court. He concluded any assertion that sentencing counsel's

performance fell below the objective standard was vague, conclusory, or

speculative and therefore did not warrant an evidentiary hearing.

The judge recounted that defendant's sentencing counsel submitted a

memorandum at the sentencing hearing detailing the applicable mitigating

factors. Defendant argued her counsel presented mitigating factors four, seven,

4 Rule 3:22-12(a)(1) requires that a first PCR petition be filed no later than five years after the date of the judgment of conviction being challenged, subject to certain enumerated exceptions. A-1719-22 5 eight,5 nine,6 eleven, and twelve 7 to the sentencing court for consideration, but

did not argue factors eight and twelve. The judge found the sentencing court

nonetheless explicitly considered mitigating factors four, seven, nine, and

eleven, while implicitly rejecting factor eight through finding that aggravating

factor three applied. He concluded defendant's assertion that mitigating factor

twelve applied was "unclear and speculative."

The judge also addressed defendant's arguments that: 1) the sentencing

court did not properly balance the aggravating and mitigating factors; and 2)

both trial and appellate counsel were ineffective in failing to request a further

articulation by the sentencing court or file an appeal. On review, he conducted

a balancing analysis on the record, concluding mitigating factors four and seven

were balanced by aggravating factors three and nine and, therefore, a mid-range

sentence of twenty years, subject to NERA, was appropriate. The judge also

recognized that we affirmed defendant's sentence, finding it was properly

5 Mitigating factor eight is "[t]he defendant's conduct was the result of circumstances unlikely to recur . . . ." N.J.S.A. 2C:44-1(b)(8). 6 Mitigating factor nine is "[t]he character and attitude of the defendant indicate that the defendant is unlikely to commit another offense. . . ." N.J.S.A. 2C:44- 1(b)(9). 7 Mitigating factor twelve is "[t]he willingness of the defendant to cooperate with law enforcement authorities. . . ." N.J.S.A. 2C:44-1(b)(12). A-1719-22 6 balanced. Since counsel was able to achieve a sentence of ten years less than

the State's recommendation, defendant was not prejudiced.

This appeal followed. Defendant raises the following point for our

consideration:

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIM THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO ADVOCATE ADEQUATELY AS TO HER SENTENCE.

II.

On appeal, defendant argues she is entitled to an evidentiary hearing on

her ineffective assistance of counsel claim because her trial and appellate

counsel failed to adequately advocate on her behalf regarding sentencing.

Defendant contends her trial counsel failed to argue the mitigating factors

contained in N.J.S.A. 2C:44-1(b)(8) and (12) applied; argue against the

application of aggravating factors pursuant to N.J.S.A. 2C:44-1(a)(3) and (9);

and argue for a proper balancing of the aggravating and mitigating factors.

Defendant also posits that appellate counsel rendered ineffective assistance at

the SOA hearing by failing to argue the trial court misapplied statutory

aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and did not balance all of

the applicable factors. Defendant further contends that since her arguments

A-1719-22 7 depend largely on extrinsic evidence outside the record, namely her testimony

and that of her attorney, this matter must be remanded for an evidentiary hearing.

Because Judge Hughes reached the merits of defendant's PCR petition, we

dispense with a discussion of whether the petition was time-barred or otherwise

procedurally barred pursuant to Rule 3:22-4(a). Instead, we address the merits-

based arguments on appeal.

PCR "is New Jersey's analogue to the federal writ of habeas corpus." State

v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459

(1992)). It is the vehicle through which a defendant may, after conviction and

sentencing, challenge a judgment of conviction by raising issues that could not

have been raised on direct appeal and, therefore, "ensures . . . a defendant was

not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997).

Where an evidentiary hearing has not been held on a PCR petition, we

"conduct a de novo review of both the factual findings and legal conclusions of

the PCR court." State v. Harris, 181 N.J. 391, 419-21 (2004) . However, "we

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) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).

A-1719-22 8 To establish a prima facie case of ineffective assistance of counsel,

defendant must satisfy the familiar two-prong test articulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .

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). Defendant must then show counsel's "deficient

performance prejudiced the defense." Ibid. (quoting Strickland, 466 U.S. at

687).

When assessing the first prong, "[j]udicial scrutiny of counsel's

performance must be highly deferential." 466 U.S. at 68-69. "Merely because

a trial strategy fails does not mean that counsel was ineffective." State v. Bey,

161 N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional

assistance," and "the defendant must overcome the presumption that, under the

circumstances, the challenged action [by counsel] 'might be considered sound

trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)). Under Strickland's second prong, the defendant must show

"the deficient performance prejudiced the defense." Id. at 687.

A-1719-22 9 In the context of sentencing, counsel owes a duty to proffer "mitigating

evidence in support of a lesser sentence" and failure to honor that obligation

denies a defendant the "constitutional right to the effective assistance of counsel

at sentencing." State v. Hess, 207 N.J. 123, 129 (2011). Sentencing hearings

afford defense counsel the "opportunity to make a vigorous argument regarding

mitigating and other circumstances, hoping to personalize defendant in order to

justify the least severe sentence under the Criminal Code." State v. Briggs, 349

N.J. Super. 496, 501 (App. Div. 2002).

"The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing." State v. Vanness, 474 N.J. Super. 609, 623 (App. Div.

2023) (citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).

The PCR court should grant an evidentiary hearing "only when: (1) the

defendant establishes a prima facie case in support of PCR; (2) the court

determines that there are disputed issues of material fact that cannot be resolved

by review of the existing record; and (3) the court determines that an evidentiary

hearing is required to resolve the claims asserted." Ibid. (citing State v. Porter,

216 N.J. 343, 354 (2013)).

We affirm the determination that defendant was not entitled to an

evidentiary hearing on her PCR petition. The record establishes the arguments

A-1719-22 10 asserted by counsel as well as the sentencing court's balancing of applicable

aggravating and mitigating factors to determine an appropriate sentence.

Therefore, no evidentiary hearing was necessary to develop a record for the trial

court to rule on defendant's PCR petition.

An evidentiary hearing was also unnecessary because the record does not

establish a prima facie case of ineffective assistance of counsel. Defendant has

not demonstrated that her attorneys' alleged acts or omissions fell below the

objective standard under which counsel's performance is evaluated for purposes

of determining the viability of a PCR petition. Even if defendant had presented

evidence that counsel's performance fell below the objective standard, defendant

was not prejudiced since she was sentenced to a term of ten years less than the

sentence recommended by the State under the plea agreement. As a result,

defendant has not established a prima facie showing of either Strickland prong.

We find no error with the judge’s conclusion that defendant's sentencing

counsel argued the applicable mitigating factors and, thus, counsel's

representation was not deficient. Defense counsel submitted a memorandum to

the sentencing court, highlighting mitigating factors four, seven, nine, and

eleven. Counsel further argued on the record the events on October 21, 2012

occurred because of defendant's mental health issues and, with proper treatment,

A-1719-22 11 defendant would not commit another offense. The sentencing court's rejection

of a portion of defendant's arguments and the sentence imposed after balancing

the relevant aggravating and mitigating factors does not establish ineffective

assistance of counsel.

We also reject defendant's argument that sentencing counsel failed to

insist the sentencing court explain its findings since those determinations are

already well-grounded in the record. Indeed, the sentencing court considered

counsel's arguments and found

mitigating factor number [four]. There are substantial grounds . . . not to excuse [defendant], but fail to establish a legal defense under New Jersey statutes, namely [defendant's] serious and long lasting mental health history. Number [seven], [defendant has] never been arrested, never been convicted of any crime in her life. [The court] cannot apply number [nine] because, as I said, [defendant] has [a] mental illness. [The court] considered number [eleven], the imprisonment of the defendant will cause excessive hardship.

We discern no error in Judge Hughes's conclusion that mitigating factor

eight was implicitly addressed by the sentencing court when it found

aggravating factor three was applicable based on defendant's mental illness and

potential to harm others, since she was able to take her own mother's life. There

was a factual basis in the record for finding aggravating factor three, the risk

that defendant will commit another offense, based on defendant's then-mental

A-1719-22 12 health status. This finding demonstrates that the sentencing court implicitly

rejected mitigation by way of circumstances unlikely to recur, under factor eight.

Defendant did not provide any factual basis supporting the argument that

mitigating factor twelve applies.

Defendant has failed to show there would have been a different outcome

if counsel's performance at the sentencing hearing had been different. Both

defense counsel and the witnesses that testified humanized defendant and

provided support for the successful argument that a reduction in the

recommended sentence was appropriate. The sentencing court considered

defense counsel's arguments and balanced both the aggravating and mitigating

factors prior to determining that incarceration for ten years less than the State's

recommendation was appropriate.

Nor did defendant establish appellate counsel's arguments were

objectively deficient. Even if we accept defendant's assertion that appellate

counsel should have made further arguments regarding the sentencing court's

balancing of the aggravating and mitigating factors, defendant was not

prejudiced since we affirmed the reduced sentence.

Since defendant has not established a prima facie case of ineffective

assistance of counsel by establishing any objective deficiency in counsel's

A-1719-22 13 performance or prejudice resulting from counsel's representation, we affirm the

order denying her PCR petition without an evidentiary hearing. To the extent

we have not addressed an argument raised on this appeal, it is because it lacks

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-1719-22 14