                        NOT FOR PUBLICATION WITHOUT THE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-1215-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TIMOTHY J. LADD, a/k/a
TIM J. LADD,

        Defendant-Appellant.

__________________________________________

              Submitted March 9, 2017 – Decided August 31, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              11-06-1019.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alan I. Smith, Designated
              Counsel, on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Roberta DiBiase,
              Senior Assistant Prosecutor, on the brief;
              Samuel Marzarella, Chief Appellant Attorney,
              of counsel).

PER CURIAM
    Defendant appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing.     For the

reasons that follow, we affirm.

    In October 2011, defendant pled guilty to first-degree

robbery, N.J.S.A. 2C:15-1, and, in December 2011, was sentenced

to a twelve-year prison term, subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2.     He did not file a direct appeal.

    The facts underlying the plea were as follows.      Defendant

entered a pharmacy and, while the pharmacist was removing a

bottle of Oxycodone from the safe, climbed over the counter,

wielded a knife, and grabbed the bottle.     As he ran for the

exit, an employee was able to physically detain defendant until

the police arrived.   The incident was recorded on a surveillance

tape.

    In September 2014, defendant filed a petition for PCR as a

self-represented litigant.     He attested that, at the time of the

incident, he was experiencing withdrawal symptoms from

"prescribed medication," which altered his mental capacity.

When before the PCR court, PCR counsel argued plea counsel had

been ineffective for failing to advance the argument of

intoxication or diminished capacity at the time of the incident.

Defendant contended had this argument been made during plea


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negotiations, he would have secured a more favorable plea

agreement.

    In addition, defendant contended plea counsel failed to

argue during sentencing the existence of mitigating factors one,

N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor

threatened serious harm), and four, N.J.S.A. 2C:44-1(b)(4)

(there were substantial grounds tending to excuse or justify the

defendant's conduct, though failing to establish a defense).     As

to the latter factor, defendant maintained his addiction to

substances caused his criminal conduct.   Defendant argued had

plea counsel advocated these mitigating factors applied, his

sentence would have been lower.

    On October 15, 2015, the PCR court entered an order denying

defendant's petition.

    Defendant presents the following issues for our

consideration:

         POINT I – THE ORDER DENYING POST-CONVICTION
         RELIEF SHOULD BE REVERSED AND THE MATTER
         REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
         DEFENDANT MADE A PRIMA FACIE SHOWING OF
         INEFFECTIVE ASSISTANCE OF COUNSEL.

         POINT II – THE ORDER DENYING POST-CONVICTION
         RELIEF SHOULD BE REVERSED BECAUSE IT
         VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE
         ASSISTANCE OF COUNSEL AS GUARANTEED BY THE
         SIXTH AMENDMENT TO THE UNITED STATES
         CONSTITUTION.

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                                                         A-1215-15T2
           POINT III – THE ORDER DENYING POST-
           CONVICTION RELIEF SHOULD BE REVERSED
           BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL
           WAS INEFFECTIVE UNDER THE STRICKLAND TEST,
           DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS
           RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL
           JUSTICE TO HAVE ALL MITIGATING FACTORS
           DELINEATED AT SENTENCING WAS VIOLATED.

       Defendant reprises the same arguments on appeal as he did

before the PCR court.    We are not persuaded by them and affirm.

       The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, 105 N.J. 42 (1987).    In order to prevail on a

claim of ineffective assistance of counsel, defendant must meet

the two-prong test of establishing that: (l) counsel's

performance was deficient and he or she made errors so egregious

counsel was not functioning effectively as guaranteed by the

Sixth Amendment to the United States Constitution; and (2) the

defect in performance prejudiced defendant's rights to a fair

trial such that there exists a "reasonable probability that, but

for counsel's unprofessional errors, the result of the

proceeding would have been different."    Strickland, supra, 466

U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693,

698.   When a defendant has pled guilty, the second prong

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                                                            A-1215-15T2
requires the defendant show "there is a reasonable probability

that, but for counsel's errors, [the defendant] would not have

pled guilty but would have insisted on going to trial."    State

v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in

original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

    As for defendant's claim there was a viable defense of

diminished capacity, this particular defense requires evidence

the defendant suffered from a mental disease or defect that

precluded him from having the requisite state of mind that is an

element of the offense.   N.J.S.A. 2C:4-2.   This defense mandates

the defendant present "evidence of a mental disease or defect

that interferes with [his] cognitive ability sufficient to

prevent or interfere with the formation of the requisite intent

or mens rea," State v. Galloway, 133 N.J. 631, 647 (1993), and

"that a connection is necessary between that mental disease or

defect and the defendant's ability to form the required mental

state for the crime charged."   State v. Reyes, 140 N.J. 344, 364

(1995).   Defendant has not proffered any evidence he suffered

from diminished capacity at the time he committed the robbery.

    Intoxication, including drug-induced intoxication, "does

not, in itself, constitute mental disease within the meaning of"

N.J.S.A. 2C:4-2.   N.J.S.A. 2C:2-8(c).   However, voluntary

intoxication can provide a defense if the intoxication was
                                5
                                                           A-1215-15T2
sufficient to cause a "prostration of faculties," meaning the

intoxication must be of an "extremely high level," rendering the

defendant incapable of forming an intent to commit the crime.

State v. Cameron, 104 N.J. 42, 54 (1986).

    Here, defendant is not claiming he was intoxicated during

the commission of the offense.    In fact, he claims he was

withdrawing from a substance, and his symptoms of withdrawal

caused him to commit the crime.       Accordingly, there is no basis

plea counsel was ineffective for failing to advocate he was

under the influence of any substances during the incident.

    Finally, we note that, during sentencing, in her effort to

obtain as low a sentence as possible, plea counsel did argue

mitigating factors one and four applied.      She stated:

         [S]ince you have the benefit of the
         presentence report, you understand Mr.
         Ladd's background. He comes from a bad
         childhood. It was rampant with abuse, all
         sorts of abuse. He was in foster homes. He
         had juvenile issues, but never a drug issue
         as a juvenile.

         His drug issue began when he was seriously
         injured during a work-related accident.
         . . . Doctor prescribed Oxycodone, doctor
         prescribes Percocets. And, unfortunately,
         some people become addicted. . . .

         And once you are addicted to the drug, then
         that's going to lead to either your death or
         your criminal activity. In Mr. Ladd's case,
         it did lead to his criminal activity. . . .

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                                                             A-1215-15T2
          Your Honor is familiar with the facts of
          this case. On paper, it looks really bad.
          He walks into a drug store wielding a knife,
          jumps over a counter. . . . [Y]ou see the
          victim's statement[.] I don't think at
          anytime did the victim believe that the
          intended victim was really him. I think he
          believed my client just wanted the drugs.

          He didn't want to hurt the pharmacist.    He
          wanted the drugs. . . .

          Again, we have to decide is he a violent man
          or is he a drug-addicted desperate man? I
          would go with the desperation is what caused
          the criminal activity, not a violent
          criminal.

    We are satisfied from our review of the record that

defendant failed to make a prima facie showing of

ineffectiveness of plea counsel within the Strickland-Fritz

test.   Defendant failed to present any evidence he had a viable

diminished capacity defense, and there is no evidence he was

under the influence of any substance at the time of the offence.

He faults counsel for not presenting reasons why mitigating

factors one and four applied, when in fact she did so.

Accordingly, the PCR court correctly concluded that an

evidentiary hearing was not warranted.   See State v. Preciose,

129 N.J. 451, 462-63 (1992).

    Affirmed.




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