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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2644-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEROY T. FAULKS, a/k/a RAHEEM FAULKS, LEROY R. FAULKS, LEROY J. FAULKS, LEROY T. FAULKS, JR., LEROY FAULKES, LE ROY-JR FAULKS, LEROY-JR FAULKS,
Defendant-Appellant. ___________________________________
Submitted December 18, 2018 – Decided January 24, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1256.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel; William P. Welaj, on the brief).
Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Leroy Faulks appeals from the December 1, 2017 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
On May 19, 2010, an Essex County grand jury indicted defendant,
charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The charges stemmed from a sexual offense defendant committed against
his granddaughter in November 2009. At the time of the offense, the victim was
four years old, and defendant was forty-four years old. The victim reported the
incident to her mother (defendant's daughter). The State presented the testimony
of Detective Eric Marino of the Essex County Prosecutor's Office to the grand
jury; during his testimony, he played a video interview involving the victim, and
also read into the record a statement given to law enforcement by the victim's
mother.
Pursuant to a plea agreement, defendant pled guilty to second-degree
sexual assault and the State agreed to recommend dismissal of the remaining
A-2644-17T3 2 charges. At his plea hearing before Judge Thomas Moore on January 4, 2012,
defendant acknowledged he had discussed the plea agreement and its
consequences with defense counsel; he was satisfied with counsel's services; he
read, initialed, signed, and understood the plea forms; he entered the plea freely
and voluntarily; no threats or promises were made to him; he fully understood
what was taking place at the hearing; and he had enough time to meet with
defense counsel prior to the hearing. Defendant also provided a factual basis
for his plea.
On June 6, 2012, defendant underwent a psychological evaluation by Dr.
Mark Frank, Ph.D., a licensed psychologist and forensic mental health clinician.
The court ordered the evaluation to determine his "eligibility for sentencing
under the purview of the New Jersey Sex Offender Act." N.J.S.A. 2C:47-1.
During the examination, defendant "claimed to have no memory of committing
the" offense, asserting that he was on "Xanax and some others," and that he
blacked out. "[H]e acknowledged," however, that he "did [not] think his
granddaughter would lie about something so serious." Dr. Frank previously
evaluated defendant in 1993 when he was charged with aggravated sexual
assault against a twelve-year-old; during that evaluation, defendant admitted
that although he was heavily intoxicated at the time, he recalled the inciden t.
A-2644-17T3 3 Dr. Frank concluded defendant has "serious psychological problems, most likely
a psychotic disorder," rather than a "specific sexual compulsion" disorder.
On July 27, 2012, the trial court sentenced defendant to eight years
imprisonment, subject to eighty-five percent parole ineligibility pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2, consistent with defendant's plea
agreement. Defendant did not appeal his conviction or sentence.
On January 11, 2017, defendant filed a PCR petition, arguing that his trial
counsel was ineffective because he failed to: (1) request an independent
evaluation of defendant's amnesia claim; and (2) investigate and consider certain
defenses, such as diminished capacity and intoxication. Defendant claimed that
without an independent psychological evaluation, he "was incompetent to
provide a factual basis to support a guilty plea."
On December 1, 2017, following oral argument, Judge James W. Donohue
entered an order denying defendant's PCR petition without an evidentiary
hearing, and issued a written opinion setting forth his findings and conclusions.
Judge Donohue found that defendant failed to assert a prima facie case in support
of his petition under Strickland v. Washington, 466 U.S. 668 (1984). The judge
further determined that defendant was not entitled to an evidentiary hearing
A-2644-17T3 4 because he could not demonstrate a likelihood that his claim would succeed on
the merits.
First, the judge found defendant's claims procedurally barred, as
defendant "had six months to raise all the issues regarding trial counsel's failure
to conduct an adequate pre-trial investigation or to move to withdraw his guilty
plea. [Defendant] had adequate time before sentencing to move to withdraw the
plea." The judge also found that defendant's claims could have been raised on
direct appeal. Notwithstanding these findings, the judge went on to address
defendant's claims on the merits.
The judge addressed defendant's claim regarding his trial counsel's failure
to obtain an independent evaluation before his guilty plea. The judge found that
trial counsel had the autonomy to make the strategic decision to not obtain an
independent evaluation, and that defendant failed to demonstrate that the result
of the proceedings would have been different. The judge also found that at
sentencing, "trial counsel acknowledged the lengthy process of evaluations that
the defendant underwent and explained the consequences of his guilty plea."
Next, the judge addressed defendant's claim that trial counsel failed to
consider cognizable defenses such as diminished capacity, amnesia, and
intoxication. The judge found that defendant offered nothing in the record to
A-2644-17T3 5 show that "expediency overtook vigilance," as defendant asserted. On the other
hand, the judge found the record rife with proofs that trial counsel had
knowledge of defendant's mental health complications. At his plea hearing,
defendant affirmed that he had enough time to speak with his counsel, that he
was satisfied with the services of his attorney, and that he understood what was
discussed at the hearing. At sentencing, trial counsel acknowledged defendant
had spent time prior to sentencing at Ann Klein Psychiatric Center, was
"[i]nitially found incompetent then later found competent," and such facts were
not in Dr. Frank's report. Trial counsel contended defendant should receive jail
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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-2644-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEROY T. FAULKS, a/k/a RAHEEM FAULKS, LEROY R. FAULKS, LEROY J. FAULKS, LEROY T. FAULKS, JR., LEROY FAULKES, LE ROY-JR FAULKS, LEROY-JR FAULKS,
Defendant-Appellant. ___________________________________
Submitted December 18, 2018 – Decided January 24, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1256.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel; William P. Welaj, on the brief).
Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Leroy Faulks appeals from the December 1, 2017 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
On May 19, 2010, an Essex County grand jury indicted defendant,
charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The charges stemmed from a sexual offense defendant committed against
his granddaughter in November 2009. At the time of the offense, the victim was
four years old, and defendant was forty-four years old. The victim reported the
incident to her mother (defendant's daughter). The State presented the testimony
of Detective Eric Marino of the Essex County Prosecutor's Office to the grand
jury; during his testimony, he played a video interview involving the victim, and
also read into the record a statement given to law enforcement by the victim's
mother.
Pursuant to a plea agreement, defendant pled guilty to second-degree
sexual assault and the State agreed to recommend dismissal of the remaining
A-2644-17T3 2 charges. At his plea hearing before Judge Thomas Moore on January 4, 2012,
defendant acknowledged he had discussed the plea agreement and its
consequences with defense counsel; he was satisfied with counsel's services; he
read, initialed, signed, and understood the plea forms; he entered the plea freely
and voluntarily; no threats or promises were made to him; he fully understood
what was taking place at the hearing; and he had enough time to meet with
defense counsel prior to the hearing. Defendant also provided a factual basis
for his plea.
On June 6, 2012, defendant underwent a psychological evaluation by Dr.
Mark Frank, Ph.D., a licensed psychologist and forensic mental health clinician.
The court ordered the evaluation to determine his "eligibility for sentencing
under the purview of the New Jersey Sex Offender Act." N.J.S.A. 2C:47-1.
During the examination, defendant "claimed to have no memory of committing
the" offense, asserting that he was on "Xanax and some others," and that he
blacked out. "[H]e acknowledged," however, that he "did [not] think his
granddaughter would lie about something so serious." Dr. Frank previously
evaluated defendant in 1993 when he was charged with aggravated sexual
assault against a twelve-year-old; during that evaluation, defendant admitted
that although he was heavily intoxicated at the time, he recalled the inciden t.
A-2644-17T3 3 Dr. Frank concluded defendant has "serious psychological problems, most likely
a psychotic disorder," rather than a "specific sexual compulsion" disorder.
On July 27, 2012, the trial court sentenced defendant to eight years
imprisonment, subject to eighty-five percent parole ineligibility pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2, consistent with defendant's plea
agreement. Defendant did not appeal his conviction or sentence.
On January 11, 2017, defendant filed a PCR petition, arguing that his trial
counsel was ineffective because he failed to: (1) request an independent
evaluation of defendant's amnesia claim; and (2) investigate and consider certain
defenses, such as diminished capacity and intoxication. Defendant claimed that
without an independent psychological evaluation, he "was incompetent to
provide a factual basis to support a guilty plea."
On December 1, 2017, following oral argument, Judge James W. Donohue
entered an order denying defendant's PCR petition without an evidentiary
hearing, and issued a written opinion setting forth his findings and conclusions.
Judge Donohue found that defendant failed to assert a prima facie case in support
of his petition under Strickland v. Washington, 466 U.S. 668 (1984). The judge
further determined that defendant was not entitled to an evidentiary hearing
A-2644-17T3 4 because he could not demonstrate a likelihood that his claim would succeed on
the merits.
First, the judge found defendant's claims procedurally barred, as
defendant "had six months to raise all the issues regarding trial counsel's failure
to conduct an adequate pre-trial investigation or to move to withdraw his guilty
plea. [Defendant] had adequate time before sentencing to move to withdraw the
plea." The judge also found that defendant's claims could have been raised on
direct appeal. Notwithstanding these findings, the judge went on to address
defendant's claims on the merits.
The judge addressed defendant's claim regarding his trial counsel's failure
to obtain an independent evaluation before his guilty plea. The judge found that
trial counsel had the autonomy to make the strategic decision to not obtain an
independent evaluation, and that defendant failed to demonstrate that the result
of the proceedings would have been different. The judge also found that at
sentencing, "trial counsel acknowledged the lengthy process of evaluations that
the defendant underwent and explained the consequences of his guilty plea."
Next, the judge addressed defendant's claim that trial counsel failed to
consider cognizable defenses such as diminished capacity, amnesia, and
intoxication. The judge found that defendant offered nothing in the record to
A-2644-17T3 5 show that "expediency overtook vigilance," as defendant asserted. On the other
hand, the judge found the record rife with proofs that trial counsel had
knowledge of defendant's mental health complications. At his plea hearing,
defendant affirmed that he had enough time to speak with his counsel, that he
was satisfied with the services of his attorney, and that he understood what was
discussed at the hearing. At sentencing, trial counsel acknowledged defendant
had spent time prior to sentencing at Ann Klein Psychiatric Center, was
"[i]nitially found incompetent then later found competent," and such facts were
not in Dr. Frank's report. Trial counsel contended defendant should receive jail
credits and psychiatric treatment. Ultimately, the PCR judge found defendant's
claim meritless on the basis of trial counsel's "thorough representation of the
defendant," as demonstrated by the record, and that any alleged prejudice was
"highly unlikely as the defendant . . . knowingly and voluntarily pled guilty."
Lastly, the judge found that defendant voluntarily, knowingly, and
intelligently pled guilty to one count of second-degree sexual assault. Defendant
argued that he was incompetent to provide a factual basis to support his guilty
plea, primarily based on his counsel's failure to obtain an independent
psychological evaluation prior to the plea. The judge reviewed the plea hearing,
and found there was "nothing in the transcript which suggest[ed] that . . .
A-2644-17T3 6 defendant did not comprehend either the plea process or the questions he was
being asked by Judge Moore or by his trial attorney," and that defendant
"unequivocally indicated that he inappropriately touched the victim." The judge
further found that defendant did not assert he was "'misinformed' about a
material element of [the] plea negotiation[,] or that his . . . 'reasonable
expectations,' grounded in terms of the plea agreement[] were not fulfilled ,"
State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004) (internal quotations
omitted) (quoting State v. Howard, 110 N.J. 113, 122-23 (1988)), a requirement
for a claim to vacate a guilty plea.
On appeal, defendant raises the following contentions:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH WAS NOT FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST- CONVICTION RELIEF.
A-2644-17T3 7 B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST AN INDEPENDENT EVALUATION OF THE DEFENDANT AS WELL AS HIS FAILURE TO INVESTIGATE AND CONSIDER CERTAIN DEFENSES ON HIS BEHALF.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
For a defendant to establish a case of ineffective assistance of counsel, the
defendant must show that defense "counsel's performance was deficient," and
that "there exists 'a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'" State v.
Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, 466 U.S. at 694).
Our Supreme Court approved that two-part test in State v. Fritz, 105 N.J. 42, 58
(1987), in which it held that the federal standard for evaluating an ineffective -
assistance-of-counsel claim approved in Strickland should apply in defining our
state constitutional guarantee of effective assistance of counsel.
"When a guilty plea is part of the equation," our Supreme Court has
explained that
A-2644-17T3 8 [t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is 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) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
We have carefully considered defendant's arguments in light of the
applicable law, and we conclude his arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons expressed by Judge Donohue in his cogent December 1, 2017 written
decision. We are satisfied that defendant has not established a prima facie case
of ineffective assistance of counsel, as he has not shown his trial counsel's
performance was deficient. See Strickland, 466 U.S. at 687. Even assuming
arguendo trial counsel performed deficiently, defendant failed to show the
results of the proceeding "would have been different," State v. Parker, 212 N.J.
269, 279-80 (2012) (quoting Strickland, 466 U.S. at 694), or that there was a
reasonable probability that he would have refused to plead guilty and insisted
on going to trial. Nuñez-Valdéz, 200 N.J. at 139. Furthermore, defendant is not
entitled to an evidentiary hearing as he failed to demonstrate a reasonable
A-2644-17T3 9 likelihood of success on the merits. See State v. Marshall, 148 N.J. 89, 158
(1997) (citing Preciose, 129 N.J. at 462-63).
Affirmed.
A-2644-17T3 10