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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0151-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY WILSON,

     Defendant-Appellant.
________________________

                   Submitted December 2, 2019 – Decided February 3, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 09-08-
                   0572.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen Ann Lodeserto, Designated Counsel,
                   on the brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Natacha Despinos Peavey,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Gary Wilson appeals from the trial court's order denying,

without an evidentiary hearing, his application for post-conviction relief (PCR).

Wilson collaterally challenges his conviction, after a guilty plea, of felony

murder arising out of the aggravated sexual assault and then homicide of C.S.

while she was extremely intoxicated. We affirm, because Wilson's claims of

ineffective assistance of counsel are based on no more than bald assertions that

his attorney failed to adequately prepare a defense and communicate with him

about his potential diminished capacity defense, and permitted him to plead

while he was mentally impaired.

      In his plea colloquy, Wilson stated that he and Rocky DiTaranto spent

Memorial Day 2009 at the home of David Granski, Jr., drinking and abusing

drugs to the point of intoxication. Also present at the home were Granski's

father, David Granski, Sr. (Granski Sr.), and his father's girlfriend, C.S., who

was "extremely intoxicated." At some point in the evening, Wilson admitted he

was "making out" with C.S., but stopped when Granski Sr. entered the house.

Sometime later, C.S. entered the backyard alone. DiTaranto "guid[ed] [her] to

the back of the backyard," and then sexually assaulted her on the ground. He

held C.S. down by her neck as he lay on top of her. Wilson testified that he also

intended "to have sex" with C.S. after DiTaranto finished. Wilson removed his


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                                       2
shorts, leaving him in his swim trunks, but he was unable to achieve an erection.

After that, he got a cinder block and dropped it twice on C.S.'s head "[t]o keep

her quiet for what [DiTaranto] did." The blows killed her.

      Before Wilson entered his plea, the parties had been involved in an

extended Miranda hearing on the admission of Wilson's confession. 1 Wilson

said he understood that by pleading, he waived his motion to suppress his

statements. During the plea hearing, Wilson disclosed that he was taking four

prescription medicines – Depakote, Abilify, Lexapro, and Seroquel – "[b]ecause

[he] had mental illness in the past, and present, with suicidal thoughts." He

confirmed he could understand what was happening in the court while taking

those medicines. He thereafter demonstrated that he was aware of the month

and place, the role of the judge, and his reason for being present in court. See

N.J.S.A. 2C:4-4(b).

      In response to defense counsel's inquiry, Wilson also confirmed that he

and counsel "spent a lot of time going over the facts of the case," including


1
  Apparently relying on his pre-sentence report, which is not before us, Wilson
stated in his PCR court brief that he told police that he twice strangled C.S.
before bludgeoning her to the death with the cinder block. The State has
included in the record on appeal the full text of recorded interviews with Wilson,
DiTaranto, and Granski, Jr.          However, they are unaccompanied by a
certification, see Rule 1:6-6, or any evidence that they were presented to the trial
court. Therefore, we are not obliged to consider them.
                                                                            A-0151-18T4
                                         3
witness statements and the police reports. But, defense counsel did not mention

a potential diminished capacity defense, or defense and prosecution reports

addressing the subject. Nor did the court address the waiver of a diminished

capacity defense when questioning Wilson.

      The record includes an undated report of defense expert Joel E. Morgan,

Ph.D., who opined, after interviewing Wilson and reviewing various records of

Wilson's prior mental health treatment and substance abuse, that Wilson was "in

a decompensated state at the time of the events in question; [and] he clearly was

experiencing diminished mental capacity at the time of the alleged criminal

offense."2   Dr. Morgan stated that when Wilson was intoxicated and non-

compliant with his prescribed medication, as he was when he committed the

homicide, his self-control was "extremely limited," and he experienced "serious

decompensation and engage[d] in violent behavior, likely representing the




2
  The version of the report in the record on appeal begins on page 2. Counsel
states, "Dr. Morgan's evaluation was filed without a cover page and begins on
page 2. That is how it was filed in the PCR appendix." Even if that is how the
report was presented to the PCR court, we are unpersuaded that Dr. Morgan
omitted page one of his report in his original submission to plea counsel.
Typically, the first page of a forensic examination addresses the scope of the
expert's undertaking, and the understanding reached with the examinee
regarding the use of the examination.
                                                                         A-0151-18T4
                                       4
manic phase of Bipolar disorder" and his "ability to govern his thoughts and

behavior bec[a]me[] significantly diminished."

      The court accepted Wilson's plea to felony murder, and ultimately

sentenced him, in accord with the plea agreement, to a forty-five-year prison

term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Also, as part of

the plea agreement, the court dismissed multiple first-degree murder counts,

including some that carried the risk of life imprisonment without parole. See

N.J.S.A. 2C:11-3(b)(4)(f) and -3(b)(4)(g). The court also dismissed counts

charging first-degree aggravated sexual assault. See N.J.S.A. 2C:14-2(a).

      Wilson did not file a direct appeal from his conviction or sentence. In his

timely pro se PCR petition, Wilson contended that his attorney provided

ineffective assistance of counsel. He stated only, "My lawyer let me sign a plea

bargain of 1st degree Felony Murder when the Felony I signed for was not a

felony at all But an aggravating [sic] factor." Once counseled, he submitted a

supplemental certification that alleged additional instances of ineffective

assistance of counsel and challenged the adequacy of the plea.

      With regard to ineffective assistance, he asserted that trial counsel (1)

"fail[ed] to adequately prepare the case for trial," including failing to "consult[]

an expert regarding [his] long-term use of prescription, psychotropic


                                                                            A-0151-18T4
                                         5
medications, CDS addiction, and alcoholism to determine whether [he] could

assert a defense" and "neglect[ing] to raise his mental health and substance abuse

as defenses"; (2) "fail[ed] to adequately . . . communicate with [him] about how

evidence of diminished capacity caused by [his] long-term use of prescribed,

psychotropic medications, CDS, and alcoholism could affect the outcome of a

trial"; (3) "persuad[ed] [him] to plead guilty to felony murder" while he was

hospitalized and receiving psychotropic medications, "even though there was no

evidence to support [his] participation in the required underlying felony"; and

(4) permitted him to enter a plea that lacked an adequate factual basis.

      Regarding the plea itself, he alleged it was not knowing and voluntary.

Specifically, he cataloged numerous side effects associated with Depakote,

Lexapro, Seroquel, and Abilify, and then asserted he "was experiencing all the

negative symptoms" when he pleaded guilty, and "was not thinking clearly when

. . . [he] pled guilty to felony murder." He also contended that he failed to

provide a sufficient factual basis for his plea, stating that he "did not allocate

[sic] to an underlying felony." He asked the court to "vacate [his] conviction

based on [his] guilty plea."

      However, in his counseled brief, Wilson narrowed the grounds for relief

to two points. First, he argued that trial counsel was ineffective because he


                                                                           A-0151-18T4
                                        6
failed to consult a psychiatrist or pharmacologist to evaluate Wilson's

medication and drug use, to support a diminished capacity or intoxication

defense, and "comment on the applicability of [Wilson's] long-term use of

psychotropics, chronic substance abuse, and alcoholism as defenses available to

him." Second, he argued that Wilson's allocution failed to present a factual basis

for felony murder.    He contended that there was insufficient proof of the

predicate crime of sexual assault, notwithstanding that Wilson said he saw

DiTaranto holding the victim down by her neck.

      The PCR court rejected both arguments in a written opinion.

      With respect to the ineffective-assistance-of-counsel argument, the court

applied the familiar two-prong test under Strickland v. Washington, 466 U.S.

668, 687, 694 (1984), requiring a petitioner to show that (1) counsel performed

deficiently and "made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment"; and (2) petitioner was

prejudiced, such that there existed "a reasonable probability that, but for

counsel's unprofessional errors, the result . . . would have been different." The

court found that Wilson failed to satisfy the first prong, stating, "The Defendant

has failed to explain why trial counsel's failure to consult a pharmacologist or

psychiatrist amounts to ineffective assistance of counsel when trial counsel did


                                                                          A-0151-18T4
                                        7
in fact obtain a detailed psychological report form Dr. Morgan that incorporated

Defendant's use of psychotropic medications, illicit substances, and alcohol."

      The PCR court proceeded to address Wilson's unargued assertions of

ineffective assistance. The court concluded they were bald assertions:

            The Defendant's claims that his trial counsel coerced
            him into entering a guilty plea and that his trial counsel
            did not inform him of the possibility of pursuing an
            insanity defense and/or a diminished capacity defense
            is not supported by any objective evidence in the record
            aside from Defendant's bald assertion of same in his
            certification. This Court finds that Defendant's counsel
            at the trial level did not fall below an objective standard
            of reasonableness.

The court also concluded that Wilson failed to establish he was prejudiced by

his trial counsel's performance.

      The court also rejected Wilson's inadequate-factual-basis argument.

Although the court concluded that the argument was barred by Rule 3:22-4, the

court considered the argument under Rule 3:21-1, which permits a defendant to

file a motion to withdraw a guilty plea at any time after sentencing "to correct a

manifest injustice." The court held that Wilson established a factual basis for

the predicate offense of sexual assault by presenting facts that established he

attempted to commit aggravated sexual assault. Those facts include: C.S. was

extremely intoxicated; DiTaranto held her down by her neck; she therefore was


                                                                          A-0151-18T4
                                        8
physically helpless or incapacitated; and Wilson pulled down his pants in

anticipation of assaulting C.S., and failed to complete the crime only because he

could not achieve an erection. Wilson's actions constituted "a substantial step

in a course of conduct planned to culminate in his commission of [the crime]"

of aggravated sexual assault. See N.J.S.A. 2C:5-1. The court did not address

Wilson's unargued assertion that his plea was not knowing or voluntary because

he was under the influence of psychotropic medicine.

      On appeal, Wilson refocuses his claims. He argues that a hearing is

necessary to explore his allegations that his attorney (1) ineffectively counseled

him about his diminished capacity defense, and (2) ineffectively allowed him to

plead guilty while impaired. He contends:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            THE SUBSTANCE OF THE LEGAL ADVICE PLEA
            COUNSEL    PROVIDED     TO   DEFENDANT
            REGARDING    A   DIMINISHED   CAPACITY/
            INTOXICATION DEFENSE AND HOW IT
            IMPACTED HIS DECISION TO PLEAD GUILTY,
            RATHER THAN PROCEED TO TRIAL, AND WHY
            HE ALLOWED HIS IMPAIRED CLIENT TO PLEAD
            GUILTY.

      We may review de novo the PCR court's factual findings made without an

evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no


                                                                          A-0151-18T4
                                        9
deference to the trial court's conclusions of law. Ibid. Applying this standard

of review, we affirm the trial court's order denying relief.

      As did the PCR court, we apply the Strickland two-part test. In particular,

we apply the prejudice definition applicable to a guilty plea case. A petitioner

must show "a reasonable probability that, but for counsel's errors, [the

petitioner] would not have pleaded guilty and would have insisted on going to

trial," Hill v. Lockhart, 474 U.S. 52, 59 (1985), and doing so "would have been

rational under the circumstances," Padilla v. Kentucky, 559 U.S. 356, 372

(2010).

      "[W]e consider [a] petitioner's contentions indulgently and view the facts

asserted . . . in the light most favorable to him [or her]." State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). However, we require a petitioner to

state "with specificity the facts upon which the claim for relief is based." R.

3:22-8. "A petitioner must do more than make bald assertions that he was denied

the effective assistance of counsel.         He must allege facts sufficient to

demonstrate counsel's alleged substandard performance." Cummings, 321 N.J.

Super. at 170. If a petitioner claims his attorney failed to investigate, or call an

absent witness, the petitioner must present, through an affidavit or certification,




                                                                            A-0151-18T4
                                        10
what that investigation would have produced, or what that witness would have

said. Ibid.

      Like the PCR court, we reject Wilson's ineffective-assistance-of-counsel

claims because they rest solely on "bald assertions." We acknowledge that what

qualifies as a "bald assertion" may not always be easy to discern. Sometimes,

as a practical matter, a petitioner can resort only to his or her say -so that an

attorney was ineffective. There may be no corroborating proof that an attorney

misinformed a client, or failed to address a key aspect of the case that negatively

affected the trial strategy. However, where there is obvious circumstantial

evidence tending to belie a petitioner's assertion, it is incumbent upon the

petitioner to address it.

      For example, in Cummings, the petitioner alleged that his attorney

misinformed him that he would be discredited with his prior juvenile

adjudications if he testified; and if he were not so misinformed, he would have

testified, and presented an alibi that he was at the Newark apartment of a Kyle

Brown when the alleged crime took place in East Orange. 321 N.J. Super. at

163. However, we deemed this claim insufficient to support a prima facie case,

because the petitioner presented no corroborating affidavit from Brown. Id. at

170-71.


                                                                           A-0151-18T4
                                       11
      Wilson's assertion that his plea counsel failed to confer with him about his

diminished capacity defense also fails for lack of any corroboration or

explanation. Since Wilson submitted to Dr. Morgan's examination, one may

presume that Wilson was aware that his attorney was pursuing a diminished

capacity defense; and later, by pleading, he waived that defense. Yet, Wilson's

certification in support of PCR says nothing about what counsel told him in

advance of the examination, what Dr. Morgan told him, and any discussions he

had afterwards.3 Although it would have been better practice for trial counsel

and the court to specifically address defendant's waiver of his diminished

capacity defense during his plea colloquy, see State v. O'Donnell, 435 N.J.

Super. 351 (App. Div. 2014), we are not convinced, under the circumstances of

this case, that the omission establishes a prima facie case that counsel did not

inform Wilson of the waiver. Petitioner bears the burden to establish the prima

facie case. State v. Gaitan, 209 N.J. 339, 350 (2012).

      Likewise, Wilson failed to present any support, other than his say-so, for

his assertion that counsel ineffectively allowed him to plead guilty while he was

impaired. In support of his claim that he was not thinking clearly because of his


3
   In that regard, the omission of the first page of Dr. Morgan's report looms
large, as it may have described Dr. Morgan's discussion with Wilson regarding
the purpose of the examination.
                                                                          A-0151-18T4
                                      12
psychotropic medications, he alleges implausibly that he was experiencing every

side-effect associated with his four medications that he identified. Including

among them are apparently incompatible symptoms such as shivering and

sweating, stiffness and jerking, vomiting and diarrhea, and depression and

excited feelings.

      His claim is also belied by his own statements during the plea hearing that

he was able to understand the proceedings while medicated. A defendant's

representation that his guilty plea was voluntary constitutes "'a formidable

barrier'" to the claim it was not, because we presume declarations in open court

are truthful. See State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge

v. Allison, 431 U.S. 63, 74 (1977)). 4

      Wilson provides no expert opinion that his prescribed medications, in his

case, impaired his ability to knowingly and voluntarily enter his plea, let alone

that such impairment would have been apparent to counsel. Rather, Dr. Morgan

observed, in his examination report, that when Wilson was compliant with the

four medications, he was alert, cooperative, and his speech was productive and



4
  We acknowledge that, contrary to preferred practice, the judge who accepted
Wilson's plea did not expressly find that Wilson appeared to be lucid and
thinking clearly. But, the court did find that he entered his plea "knowingly and
voluntarily."
                                                                         A-0151-18T4
                                         13
spontaneous. In sum, Wilson has failed to present a prima facie case that his

attorney was deficient by allowing him to plead guilty while impaired, because

he has failed to present a prima facie case that he was impaired.

      Inasmuch as Wilson has failed to meet the first Strickland prong, we need

not address that he suffered prejudice. However, we note that Wilson did not

clearly assert in his certification that he would have insisted upon going to trial

but for the allegedly deficient performance of counsel, nor does he explain why

that would have been rational. To establish the second point, Wilson was

obliged to address the strength of his defense, and the weight of the evidence

against him, which presented the risk of a life sentence without parole. He did

not do so.

      Wilson also argues that he should be entitled to withdraw his plea because

he did not enter it voluntarily, knowingly, and intelligently, as Rule 3:9-2

requires. He refers to the four-factor test for plea withdrawal under State v.

Slater, 198 N.J. 145, 157-58 (2009): "(1) whether the defendant has asserted a

colorable claim of innocence; (2) the nature and strength of the defendant's

reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether

withdrawal would result in unfair prejudice to the State or unfair advantage to

the accused."


                                                                           A-0151-18T4
                                       14
      We are not obliged to reach this argument, since it lacks a separate point

heading, as Rule 2:6-2(a)(5) requires. See Hackensack Riverkeeper, Inc. v. N.J.

Dep't of Envt'l Prot., 443 N.J. Super. 293, 308 n.5 (App. Div. 2015); Mid-

Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App.

Div. 2011). Furthermore, Wilson did not formally move to withdraw his plea

pursuant to Rule 3:21-1 before the trial court. See O'Donnell, 435 N.J. Super.

at 368-73 (distinguishing between a petition for PCR and a motion to withdraw

a plea). Generally, we need not address arguments not presented to the trial

court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).5

      However, a failure to comport with Rule 3:9-2 may be raised in a petition

for PCR, as well as a motion to withdraw a plea or a direct appeal. See State v.

Urbina, 221 N.J. 509, 527-28 (2015) (addressing failure to comply with Rule

3:9-2, in that case, the requirement to secure an adequate factual basis for the

plea). We therefore reach Wilson's argument that his plea was not knowing and

voluntary, and we reject it.    As we stated above, he presented only bald




5
  Although the PCR court relied on Rule 3:21-1 as a basis to consider Wilson's
inadequate-factual-basis argument, Wilson did not request, nor did the court
address, withdrawal of his plea on the ground it was not voluntary or knowing.


                                                                        A-0151-18T4
                                      15
assertions that he was impaired when he entered his plea, and that he was

unaware of Dr. Morgan's opinion regarding diminished capacity.

     Affirmed.




                                                                  A-0151-18T4
                                    16
