RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5819-13T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN HELLER,
Defendant-Appellant. ________________________________________________
Submitted February 7, 2017 – Decided August 10, 2017
Before Judges Suter and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0336.
Joseph E. Krakora, Public Defender, attorney for appellant (John Vincent Saykanic, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In 2006, a grand jury sitting in Union County charged
defendant John Heller with aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (count one); sexual assault, N.J.S.A. 2C:14-2(b)
(count two); and endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (count three). The charges arose from the events of
July 1, 2005, when defendant sexually assaulted the six-year-old
daughter of an acquaintance while babysitting the child.
Defendant was tried to a jury and convicted of all three
counts. Prior to sentencing, defendant dismissed his trial
counsel and retained new counsel who moved for judgment of
acquittal, or alternatively, for a new trial on the grounds that
defendant was incompetent to stand trial and had been denied the
effective assistance of counsel because his trial attorney had
failed to recognize his incompetence, investigate his mental
illness, and assert defenses of insanity and diminished
capacity. The motion was denied.
At sentencing, the judge merged count two with count one
and sentenced defendant to twelve years subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent
eight-year term on count three. Defendant was also sentenced to
mandatory parole supervision and community supervision for life,
to comply with Megan's Law requirements, and assessed
appropriate fines and penalties.
2 A-5819-13T4 Defendant appealed, claiming his trial counsel failed to
investigate or assert an insanity defense or a defense of mental
disease or defect; defendant was not competent to stand trial or
to testify on his own behalf; even if competent to stand trial,
defendant was not capable of making a knowing, intelligent, and
voluntary waiver of an insanity or diminished capacity defense;
the trial judge erred in admitting statements of the
child/victim; the jury selection was flawed; the State failed to
prove the element of penetration under count one; the trial
judge failed to distinguish digital penetration from touching;
the trial judge erred in refusing the jurors' request for the
written elements of the charges; and defendant should have
received a lesser sentence and a minimum term as the mitigating
factors substantially outweighed any aggravating factors.
We rejected these arguments and affirmed defendant's
convictions and sentence. State v. Heller, No. A-4685-07 (App.
Div. Aug. 31, 2010). Defendant's petition for certification was
denied. 205 N.J. 81 (2011).
Defendant filed a petition for post-conviction relief (PCR)
alleging the same arguments raised on his direct appeal:
ineffective assistance of his trial counsel for failure to
investigate or assert the defenses of insanity and diminished
capacity; trial counsel's failure to raise defendant's
3 A-5819-13T4 competency to testify; trial counsel's failure to question
defendant as to his right to remain silent or his ability to
testify in his own defense in a competent manner; and even if
defendant was competent to stand trial he was incapable of
making a knowing, intelligent, and voluntarily waiver of the
insanity or diminished capacity defenses.
After hearing oral argument, the PCR judge ordered an
evidentiary hearing. On April 9, 2014, defendant's first
attorney, Joseph Spagnoli, testified that defendant retained him
shortly after his arrest. After defendant told Spagnoli he was
with his brother in Roselle Park, not in Hillside where the
crime was alleged to have occurred, Spagnoli urged defendant to
assert an alibi defense. After Spagnoli ordered cellphone site
records in hopes of corroborating defendant's alibi, the
cellphone site records indicated defendant's cellphone had been
used near the scene of the crime in Hillside, not in Roselle
Park as defendant had claimed.
When Spagnoli confronted defendant about the discrepancy in
his story, defendant admitted that he had committed the crime.
Spagnoli then filed a motion to withdraw from the case because
he felt that his rapport with defendant had dissipated.
Spagnoli testified that defendant never told him about his
psychiatric history, his prior psychiatric hospitalizations, or
4 A-5819-13T4 that he had been seeing a psychiatrist for over a decade prior
to his arrest. Spagnoli testified that, in his opinion, there
was no basis for a diminished capacity defense because defendant
was able to talk with him extensively about the case and was
more than able to aid his own defense.
Joseph Depa testified that he replaced Spagnoli as trial
counsel. Depa discussed defendant's mental state and his
psychotropic medication regimen, but defendant and his family
described defendant's illness as a "nervous condition" and the
concept of mental illness was never broached. Depa testified
that defendant and his family never told him that defendant
suffered from bipolar disorder, manic depressive disorder, or
schizophrenia. Depa explained that he did not pursue an
insanity defense as it was inconsistent with the alibi defense
which he considered "workable."
When the PCR judge questioned Depa about defendant's mental
health, he testified that any time defendant's mental health
came up in relation to the presentation of a defense, it was clear neither [defendant] or his mother wanted to connect one with the other. The medication was for something they thought was not significant in terms of the charges or the trial for the charges and really never got to the point of whether or not it would []underpin a defense because []it just was not significant, I'd need not worry about it, and he had an alibi.
5 A-5819-13T4 Joan Heller, defendant's mother, testified defendant was
first institutionalized in 1983 for acting erratically.
Defendant was again institutionalized twice in 1989 and again in
2000 and 2002. She testified she informed Spagnoli and Depa
that defendant suffered from bipolar disorder but both failed to
discuss defenses relating to insanity, diminished capacity, or
incompetency to stand trial.
On May 12, 2014, the PCR judge entered an order accompanied
by an eighteen-page written decision denying defendant's
petition. The judge found the testimony of Spagnoli and Depa
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RECORD IMPOUNDED
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-5819-13T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN HELLER,
Defendant-Appellant. ________________________________________________
Submitted February 7, 2017 – Decided August 10, 2017
Before Judges Suter and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0336.
Joseph E. Krakora, Public Defender, attorney for appellant (John Vincent Saykanic, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In 2006, a grand jury sitting in Union County charged
defendant John Heller with aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (count one); sexual assault, N.J.S.A. 2C:14-2(b)
(count two); and endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (count three). The charges arose from the events of
July 1, 2005, when defendant sexually assaulted the six-year-old
daughter of an acquaintance while babysitting the child.
Defendant was tried to a jury and convicted of all three
counts. Prior to sentencing, defendant dismissed his trial
counsel and retained new counsel who moved for judgment of
acquittal, or alternatively, for a new trial on the grounds that
defendant was incompetent to stand trial and had been denied the
effective assistance of counsel because his trial attorney had
failed to recognize his incompetence, investigate his mental
illness, and assert defenses of insanity and diminished
capacity. The motion was denied.
At sentencing, the judge merged count two with count one
and sentenced defendant to twelve years subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent
eight-year term on count three. Defendant was also sentenced to
mandatory parole supervision and community supervision for life,
to comply with Megan's Law requirements, and assessed
appropriate fines and penalties.
2 A-5819-13T4 Defendant appealed, claiming his trial counsel failed to
investigate or assert an insanity defense or a defense of mental
disease or defect; defendant was not competent to stand trial or
to testify on his own behalf; even if competent to stand trial,
defendant was not capable of making a knowing, intelligent, and
voluntary waiver of an insanity or diminished capacity defense;
the trial judge erred in admitting statements of the
child/victim; the jury selection was flawed; the State failed to
prove the element of penetration under count one; the trial
judge failed to distinguish digital penetration from touching;
the trial judge erred in refusing the jurors' request for the
written elements of the charges; and defendant should have
received a lesser sentence and a minimum term as the mitigating
factors substantially outweighed any aggravating factors.
We rejected these arguments and affirmed defendant's
convictions and sentence. State v. Heller, No. A-4685-07 (App.
Div. Aug. 31, 2010). Defendant's petition for certification was
denied. 205 N.J. 81 (2011).
Defendant filed a petition for post-conviction relief (PCR)
alleging the same arguments raised on his direct appeal:
ineffective assistance of his trial counsel for failure to
investigate or assert the defenses of insanity and diminished
capacity; trial counsel's failure to raise defendant's
3 A-5819-13T4 competency to testify; trial counsel's failure to question
defendant as to his right to remain silent or his ability to
testify in his own defense in a competent manner; and even if
defendant was competent to stand trial he was incapable of
making a knowing, intelligent, and voluntarily waiver of the
insanity or diminished capacity defenses.
After hearing oral argument, the PCR judge ordered an
evidentiary hearing. On April 9, 2014, defendant's first
attorney, Joseph Spagnoli, testified that defendant retained him
shortly after his arrest. After defendant told Spagnoli he was
with his brother in Roselle Park, not in Hillside where the
crime was alleged to have occurred, Spagnoli urged defendant to
assert an alibi defense. After Spagnoli ordered cellphone site
records in hopes of corroborating defendant's alibi, the
cellphone site records indicated defendant's cellphone had been
used near the scene of the crime in Hillside, not in Roselle
Park as defendant had claimed.
When Spagnoli confronted defendant about the discrepancy in
his story, defendant admitted that he had committed the crime.
Spagnoli then filed a motion to withdraw from the case because
he felt that his rapport with defendant had dissipated.
Spagnoli testified that defendant never told him about his
psychiatric history, his prior psychiatric hospitalizations, or
4 A-5819-13T4 that he had been seeing a psychiatrist for over a decade prior
to his arrest. Spagnoli testified that, in his opinion, there
was no basis for a diminished capacity defense because defendant
was able to talk with him extensively about the case and was
more than able to aid his own defense.
Joseph Depa testified that he replaced Spagnoli as trial
counsel. Depa discussed defendant's mental state and his
psychotropic medication regimen, but defendant and his family
described defendant's illness as a "nervous condition" and the
concept of mental illness was never broached. Depa testified
that defendant and his family never told him that defendant
suffered from bipolar disorder, manic depressive disorder, or
schizophrenia. Depa explained that he did not pursue an
insanity defense as it was inconsistent with the alibi defense
which he considered "workable."
When the PCR judge questioned Depa about defendant's mental
health, he testified that any time defendant's mental health
came up in relation to the presentation of a defense, it was clear neither [defendant] or his mother wanted to connect one with the other. The medication was for something they thought was not significant in terms of the charges or the trial for the charges and really never got to the point of whether or not it would []underpin a defense because []it just was not significant, I'd need not worry about it, and he had an alibi.
5 A-5819-13T4 Joan Heller, defendant's mother, testified defendant was
first institutionalized in 1983 for acting erratically.
Defendant was again institutionalized twice in 1989 and again in
2000 and 2002. She testified she informed Spagnoli and Depa
that defendant suffered from bipolar disorder but both failed to
discuss defenses relating to insanity, diminished capacity, or
incompetency to stand trial.
On May 12, 2014, the PCR judge entered an order accompanied
by an eighteen-page written decision denying defendant's
petition. The judge found the testimony of Spagnoli and Depa
"extremely credible." By contrast, the judge found Joan
Heller's testimony "extremely incredible" and concluded that she
had an "obvious bias and interest in seeing her son's conviction
vacated."
The judge found that defendant failed to establish a claim
of ineffective assistance of either trial counsel as he did not
satisfy the first prong of the test set forth in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 697-98 (1984):
Petitioner and the members of his family insisted that Mr. Depa raise the alibi defense and intentionally withheld evidence regarding petitioner's mental health history that would have given Mr. Spagnoli and/or Mr. Depa reason to consider an alternative defense strategy at trial. In view of these circumstances, the
6 A-5819-13T4 court finds it was reasonable for Mr. Spagnoli and Mr. Depa to forego an investigation of petitioner's mental health history and its potential influence on his culpability in this matter.
On appeal, defendant repeats these claims of error:
POINT I
THE DENIAL OF THE POST-CONVICTION RELIEF APPLICATION SHOULD BE REVERSED AND DEFENDANT'S CONVICTIONS VACATED AS DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S (AND FIRST COUNSEL'S) FAILURE TO INVESTIGATE OR ASSERT AN INSANITY DEFENSE UNDER N.J.S.A. 2C:4-1 AND 2.
JUDGE MEGA'S DECISION DENYING POST- CONVICTION RELIEF.
THE LAW CONCERNING POST-CONVICTION RELIEF APPLICATIONS.
THE LAW REGARDING INEFFECTIVE COUNSEL.
INEFFECTIVENESS REGARDING MENTAL DEFICIENCY OR INSANITY DEFENSES.
POINT II
THE COURT BELOW ERRED IN DENYING THE PCR PETITION AS THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS TRIAL COUNSEL'S (AND FIRST COUNSEL'S) FAILURE TO INVESTIGATE OR ASSERT THE DEFENSE OF DIMINISHED CAPACITY (MENTAL DISEASE OR DEFECT) (U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. 1, PAR. 10).
7 A-5819-13T4 POINT III
THE COURT BELOW ERRED IN DENYING THE PCR PETITION AS THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL AND DUE PROCESS RIGHT TO A FAIR TRIAL AS THE DEFENDANT WAS NOT COMPETENT TO STAND TRIAL; TRIAL COUNSEL SHOULD HAVE RAISED THE ISSUE OF DEFENDANT'S COMPETENCY TO TESTIFY (PARTICULARLY SO SOON AFTER THE DEATH OF HIS FATHER) AND DUE TO MEDICATION THAT THE DEFENDANT WAS TAKING WHEN HE TESTIFIED (U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. 1, PAR. 10).
POINT IV
THE COURT BELOW ERRED IN DENYING THE PCR PETITION AND THE DEFENDANT'S CONVICTIONS MUST BE VACATED SINCE DEFENDANT WAS INCOMPETENT TO TESTIFY IN HIS OWN BEHALF; THE DEFENDANT WAS NEVER QUESTIONED AS TO HIS RIGHT TO REMAIN SILENT OR AS TO HIS ABILITY TO TESTIFY IN HIS OWN DEFENSE IN A COMPETENT MANNER IN VIOLATION OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
POINT V
THE COURT BELOW ERRED IN DENYING THE PCR PETITION AND THE DEFENDANT'S CONVICTIONS MUST BE VACATED SINCE, EVEN IF HE IS DEEMED TO HAVE BEEN COMPETENT TO STAND TRIAL, HE WAS NEVERTHELESS INCAPABLE OF MAKING A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF THE INSANITY OR DIMINISHED CAPACITY DEFENSES; DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS WERE VIOLATED.
As a preliminary matter, we note that defendant's arguments
raised before the PCR judge were procedurally barred pursuant to
8 A-5819-13T4 Rule 3:22-5. The Rule provides that "[a] prior adjudication
upon the merits of any ground for relief is conclusive whether
made in the proceedings resulting in the conviction or in any
post-conviction proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any appeal taken from such
proceedings." Ibid. This bar applies when a defendant attempts
to raise arguments that are "'identical or substantially
equivalent' to th[e] issue[s] previously adjudicated on [the]
merits." State v. McQuaid, 147 N.J. 464, 484 (1997) (first
quoting State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div.
1979), then citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.
Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971)). Here,
defendant's arguments in the PCR petition are "identical or
substantially equivalent" to those we have already adjudicated.
Defendant argued that he was incompetent to testify on his
own behalf; that he was never questioned as to his ability to
testify in his own defense; and that trial counsel was
ineffective for failing to raise the issue of his competency.
Defendant also argues that he was incapable of making a knowing,
intelligent, and voluntary waiver of the insanity or diminished
capacity defenses.
In our prior opinion, we concluded that the record "did not
raise a bona fide doubt as to [defendant's] competence." Heller,
9 A-5819-13T4 supra, slip op. at 14. We also considered defendant's arguments
concerning his capability of "waiving" the defenses of insanity
and diminished capacity, as well as his ability to testify. Id.
at 10-15. After weighing these issues, we concluded that
defendant's arguments lacked merit. Ibid. Because we previously
adjudicated these issues, and because the issues raised in
defendant's appeal are identical to issues he raised on direct
appeal, we conclude that defendant's arguments are procedurally
barred.
Even if we were to consider the arguments raised here, they
lack sufficient merit to warrant discussion beyond the following
brief comments. R. 2:11-3(e)(2).
Defendant's primary contention on appeal is that his trial
attorney was ineffective because he failed to take investigatory
steps that would have led him to assert the defenses of insanity
and diminished capacity, or would have led him to assert that
defendant was incompetent to stand trial. After weighing the
credibility of the testifying witnesses, the PCR judge found
that "it was reasonable for Mr. Spagnoli and Mr. Depa to forego
an investigation of petitioner's mental health history and its
potential influence on his culpability in this matter."
We are satisfied that Spagnoli and Depa took proper
investigatory steps that led them to conclude that defendant
10 A-5819-13T4 would not benefit from the defenses of insanity and diminished
capacity, and that defendant was competent to testify. The
attorneys met with defendant on several occasions prior to
trial, both privately and with members of his family. From
these meetings, the attorneys concluded that defendant could
assist in his own defense. Although Spagnoli did not ask
defendant about his medication and mental health status,
defendant and his family never informed him of these issues.
Depa did ask defendant about his mental health status and
medication but was rebuffed whenever the line of inquiry arose,
and was told defendant suffered only from a "nervous condition."
Although Joan Heller testified that she and defendant told
Depa that defendant suffered from bipolar disorder, the court
did not find her testimony credible and instead relied on Depa's
testimony, which was that neither defendant nor his family
informed him of such a condition. We are satisfied that the
judge's conclusion that defendant and his family actively
discouraged Depa's investigation into his mental health status,
and directed him to focus solely on the alibi defense is amply
supported by the record. "[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel's failure to pursue those
investigations may not later be challenged as unreasonable."
11 A-5819-13T4 Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2061, 80 L.
Ed. 2d at 696.
Affirmed.
12 A-5819-13T4