                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-1480-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD R. LEONCINI,

     Defendant-Appellant.
______________________________

                   Submitted April 27, 2020 – Decided July 24, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 14-07-
                   0697.

                   Schwartz, Hanna & Olsen, PC, attorneys for appellant
                   (Andrew Robert Burroughs and Christopher George
                   Olsen, on the briefs).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Richard R. Leoncini appeals the Law Division order denying

him post-conviction relief (PCR) following an evidentiary hearing. Having

reviewed the record considering the applicable legal standards, we affirm.

                                        I

      The underlying trial evidence and procedural history are detailed in our

unpublished decision affirming defendant's conviction and sentence on direct

appeal, State v. Leoncini, No. A-5526-14T1 (App. Div. Mar. 1, 2017), and in

the PCR court's nine-page written decision. We incorporate both by reference

here; thus, a brief summary will suffice.

      In the early evening of February 1, 2014, defendant was driving on Route

206 in Mansfield Township when he made an illegal U-turn. Mansfield Police

Detective Daniel Ehnstrom, who was driving a marked patrol vehicle in the

opposite direction, saw the violation and turned around to pull over defendant's

vehicle. Despite Ehnstrom's activation of his patrol car's emergency lights, air

horn, and siren, defendant did not stop and continued at a high rate of speed. At

various points after turning onto other roadways, with Ehnstrom still in pursuit,

defendant swerved between lanes, drove through red lights, and veered into a

lane of oncoming traffic.      When Ehnstrom was able to drive alongside


                                                                         A-1480-18T1
                                        2
defendant's vehicle, defendant waved at Ehnstrom, which Ehnstrom believed

was a request to "to pull up next to him." Fearing defendant who appeared to

be wearing military camouflage clothing was headed to Fort Dix military base,

Ehnstrom radioed dispatch to alert the base's security personnel of a possible

"terrorist or some other concern."

      Defendant eventually stopped at the dead-end of the Fort Dix entrance and

security checkpoint where a temporary barricade had been constructed manned

by ten or twelve security officers. Defendant was arrested without incident after

getting out of his car. In the ensuing investigation, Ehnstrom learned defendant

was at the security checkpoint earlier that evening and left without retrieving his

driver's license and wallet from security officers who asked to see his

identification when he claimed he was at the base to help American soldiers.

      Defendant was charged with several motor vehicle violations and indicted

for the sole count of second-degree eluding, N.J.S.A. 2C: 29-2(b). In light of

defendant's history of mental illness, there was concern about competency to

stand trial. Following a competency hearing on the trial's eve, the trial court

determined defendant was competent to stand trial.

      At trial defendant testified he was going back to Fort Dix, because the

military security had kept his driver's license when he went there earlier that


                                                                           A-1480-18T1
                                        3
evening to offer his help after watching television news reports about American

soldiers being wounded overseas. Defendant stated he thought Ehnstrom was

escorting him to Fort Dix as a result of his 4-1-1 or 9-1-1 call asking for "back-

up," and did not want to pull over because he did not have his driver's license.

The jury found defendant guilty of second-degree eluding. The court later

sentenced him to a downgraded third-degree three-year prison term, with no

parole disqualifier, and ordered to receive further mental health treatment.

      Defendant appealed his conviction and sentence.         In an unpublished

decision, we affirmed both. Leoncini, slip op. at 1-2. We rejected defendant's

contentions the trial court should have reevaluated his competency to stand trial

because his mental state declined since the outset of his trial. Id. at 17-18, 29.

We also found the court properly balanced the aggravating and mitigating

factors in downgrading defendant's sentence in the face of the State's demand

for a longer second-degree term. Id. at 30-31. The Supreme Court denied

defendant's petition for certification. State v. Leoncini, 203 N.J. 572 (2017).

                                        II

      Shortly after the Supreme Court refused to consider his appeal, defendant

filed a self-represented PCR petition. He was subsequently assigned counsel.

The petition alleged trial counsel provided ineffective assistance of counsel by


                                                                          A-1480-18T1
                                        4
failing to investigate and assert an insanity or diminished capacity defense. The

same court which presided over defendant's trial, conducted oral argument on

the PCR claim and decided an evidentiary hearing was appropriate because

defendant established a prima facie PCR claim.

      On the morning the hearing was to commence, the court entertained

defendant's motion – filed the day before – to represent himself during the

evidentiary hearing.    After questioning defendant regarding his educational

background and understanding of the substantive and procedural law governing

the proceeding, the court denied the motion.1 In its bench decision, the court

explained:

             [T]that based on . . . [defendant's] answers, a knowing
             and intelligent waiver cannot be established here. The
             [c]ourt finds that [defendant] would not be able to
             conduct his defense in accordance with the Rules of
             Criminal Procedure and Evidence, that a lack of
             knowledge may impair his ability to defend himself and
             that his dual role a[s] attorney and accused may hamper
             his effectiveness -- the effectiveness of his defense.

             In addition, if a new trial is granted as a result of this
             PCR, [defendant] indicates that he will investigate
             whether he is competent to proceed and if so, whether
             he would be not guilty by reason of insanity. This
             [c]ourt is reluctant to find that [defendant] is competent

1
  The court also denied defendant's request to seal the PCR record out of concern
his medical records would become public records. The denial is not an issue on
appeal.
                                                                          A-1480-18T1
                                         5
            to represent himself in this PCR when the basis of this
            PCR is that trial counsel did not fully investigate
            whether [defendant] was fit to proceed and if so, not
            guilty by reason of insanity.

      Defendant's trial counsel was the first witness to testify. A licensed

attorney since 1975, and since he began specializing in criminal law in 2008,

counsel had about nineteen criminal trials and had also represented individuals

in mental competency hearings. He stated he took over defendant's defense from

a prior attorney, who told him defendant did not want to assert an insanity

defense. The prior attorney's file contained copies of her letters to defendant

stating she would not assert such defense without his consent.        To aid in

developing a trial strategy, counsel stated he reviewed accounts of the incident

in police reports and Ehnstrom's motor vehicle recording, as well as reviewing

defendant's medical records which defendant disclosed to him. He claimed he

was not aware of defendant's hospitalization for mental instability and release

on December 3, 2013, about three months before the incident, because defendant

never shared that information with him. Counsel claimed he saw no indication

in defendant's medical records that defendant may have been mentally

incompetent the night of the incident. Counsel testified he requested all the

medical records defendant asked him to obtain.



                                                                        A-1480-18T1
                                       6
      In discussing the incident with defendant, counsel testified defendant's

recollection was clear and logical and defendant claimed he honestly believed

Ehnstrom was backing him up and escorting him to the base to retrieve his

credentials. According to counsel, defendant advised him before trial that he

did not want to pursue an insanity defense; expressing concern about his medical

history becoming public if such a defense was asserted. Defendant told him he

was aware he had an obligation to stop and pull over his vehicle based upon

Ehnstrom's actions. Counsel testified he "was confident at the time in dealing

with [defendant] that he was[:] a) able to make that kind of decision, and b) he

was not under any delusions or improper recollection of what had happened on

the night in question." Consequently, counsel stated "the whole essence of the

defense at trial, which was based on what [defendant] told me, was that he

basically made an honest mistake of judgment as opposed to not knowing what

he was doing."

      Counsel testified he never discussed an insanity or diminished capacity

defense because defendant "made it pretty clear he didn't want an insanity

defense." Counsel recalled it was not until after the jury found defendant guilty

that defendant mentioned an insanity defense should have been raised, which he




                                                                         A-1480-18T1
                                       7
wrote in his case file. Counsel's file notes of April 16, 2015 provide defendant

"[n]ow wants a Krol"2 hearing.

      In support of his PCR claim, defendant presented the report of Dr.

Kenneth J. Weiss, M.D., who conducted a competency evaluation of defendant

about five months prior to the evidentiary hearing. Dr Weiss noted that prior to

the incident, defendant was hospitalized six to ten times for "delusional thinking

and suicidal behavior" with a "Schizoaffective Disorder" diagnosis. Based upon

his review of defendant's extensive medical history, Dr. Weiss concluded

"within a reasonable degree of medical certainty that there was sufficient

evidence that [d]efendant was suffering from a serious mental illness at the time

of the incident to support a defense of insanity or diminished capacity."

      Defendant testified counsel never discussed with him the prospects of an

insanity defense. About two months before the trial he had stopped taking his

prescribed medication, which made him a "delusional paranoid schizophrenic,"

where he would "agree[] with everybody." He did not believe he told counsel

he "was in in the hospital previously[.]" Defendant testified he told counsel to


2
  In accordance with State v. Krol, 68 N.J. 236, 257 (1975), after a defendant is
found to be not guilty by reason of insanity the State must prove at a hearing,
whether a defendant should be released or be confined to a mental institution to
receive treatment for a continuing mental illness that causes a defendant to be a
potential danger to self or society.
                                                                            A-1480-18T1
                                        8
obtain his medical records, but counsel refused because it was too expensive. It

was not until after trial that counsel got all his medical records.

      The court entered an order on September 28, 2018 denying defendant's

PCR claim. The court explained the reasons for its order in a written decision

dated October 9, 2018. The court concluded defendant failed to satisfy the two-

prong test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which

requires a showing that defense counsel's performance was deficient and that,

but for the deficient performance, the result would have been different. See

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in

New Jersey).

      With respect to Strickland's first prong, the court found trial counsel was

not ineffective for failing to investigate the possibility of asserting an insanity,

N.J.S.A. 2C:4-1, or a diminished capacity defense, N.J.S.A. 2C:4-2, because it

was counsel's "trial strategy and client advocacy" that defendant "was not under

a mental health defect at the time of the [incident]." The court determined

counsel's trial tactics were based upon counsel's review of the competency

evaluation report of Dr. Peter Paul, PsyD., who opined defendant "was

competent to stand trial and understood the nature and circumstances the charges

against him," and discussions with defendant regarding the incident. The court


                                                                            A-1480-18T1
                                         9
credited counsel's testimony defendant did not want to pursue an insanity

defense based upon defendant's first attorney's letters in defendant's file and his

own discussions with defendant. The court also credited counsel's testimony

that defendant never revealed his prior hospitalization two months before the

incident, nor the same "burning sensation in his brain shortly before the

incident," which prompted that hospitalization. Thus, the court found counsel

had no reason to seek those hospital records, and thus, rejected defendant's claim

counsel was ineffective for not raising an insanity or diminished capacity

defense.

      As for the second Strickland prong, the court determined defendant had

"not shown that there [was] a reasonable probability that, but for [counsel's]

failure to investigate and request the additional hospital records, the results of

his case would have been different." The court acknowledged "some of the

hospital records introduced at the evidentiary hearing . . . are troubling, showing

that [defendant] suffered from bouts of mental deficiency, [but] nothing in the

records indicates [defendant] was experiencing these signs and symptoms at the

time of the incident." In fact, the court stated the medical records provided to

counsel and defendant's comments to counsel evidence defendant had stabilized

when the incident occurred. The court concluded, based on "the evidence


                                                                           A-1480-18T1
                                       10
presented to trial counsel, the facts and circumstances of [defendant's] case did

not lend itself to a mental health defense."

      In this appeal, defendant argues:

            POINT I

            DEFENDANT     RECEIVED     INEFFECTIVE
            ASSISTANCE OF COUNSEL BECAUSE HIS
            ATTORNEY FAILED TO INVESTIGATE AND TO
            PRESENT MENTAL HEALTH DEFENSES AT
            TRIAL.

            POINT II

            THE COURT ERRED WHEN IT DENIED
            DEFENDANT HIS CONSTITUTIONAL RIGHT TO
            PROCEED PRO SE AT THE PCR HEARING.

                                         III

      Initially, we address defendant's Point I contention. In doing so, we first

point out the charged offense in question is second-degree eluding, defined as:

            Any person, while operating a motor vehicle on any
            street or highway in this State . . . who knowingly flees
            or attempts to elude any police or law enforcement
            officer after having received any signal from such
            officer to bring the vehicle . . . to a full stop . . . if the
            flight or attempt to elude creates a risk of death or
            injury to any person.

            [N.J.S.A. 2C:29-2 (b).]




                                                                             A-1480-18T1
                                        11
There is no dispute defendant's manner of driving while being pursued by

Ehnstrom met the statutory standard for second-degree eluding.             The jury

rejected defendant's explanation that he honestly mistook Ehnstrom's actions as

supporting his attempt to retrieve his credentials from the Fort Dix security

officers. Defendant argues he is entitled to a new trial where he can raise a

defense of insanity or diminished capacity because his trial counsel failed to do

so.

      "The insanity defense is 'an affirmative defense which must be proved by

a preponderance of the evidence[,]' N.J.S.A. 2C:4-1, . . . [i]t is, accordingly, a

defense that must be affirmatively invoked by the defendant if it is to play a role

at trial." State v. Gorthy, 226 N.J. 516, 533 (2016). To succeed with an insanity

defense, a defendant must prove "that the greater weight of credible evidence

showed that [he or] she was not mentally capable of distinguishing right from

wrong when" the offense was committed. State v. J.T., 455 N.J. Super. 176, 216

(App. Div. 2018).

      A diminished capacity defense applies where a defendant (1) "has

presented evidence of a mental disease or defect that interferes with cognitive

ability sufficient to prevent or interfere with the formation of the requisite intent

or mens rea[,]" and (2) "the record contains evidence that the claimed deficiency


                                                                             A-1480-18T1
                                        12
did affect the defendant's cognitive capacity to form the mental state necessary

for the commission of the crime." State v. Galloway, 133 N.J. 631, 647 (1993).

A defendant must initially "introduce evidence of a mental disease or defect

tending to show that he or she was incapable of forming the requisite intent,

N.J.S.A. 2C:4-2, 'the statute does not shift the burden of proof to the defendant

to disprove an essential element of the case.'" State v. Baum, 224 N.J. 147, 161

(2016) (quoting State v. Moore, 122 N.J. 420, 431 (1991)). Hence, "the burden

of proof remains on the State to establish the mens rea of the offense." Ibid.

(citing Moore, 122 N.J. at 431).

      After the evidentiary hearing, the PCR court found counsel was not

ineffective for deciding not to raise an insanity or diminished capacity defense.

We agree and affirm substantially for the reasons detailed in the court's written

opinion. We add the following comments.

      Where, as here, the PCR court conducts an evidentiary hearing, we must

uphold the court's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440

(2013) (internal quotation marks omitted) (quoting State v. Robinson, 200 N.J.

1, 15 (2009)).     Additionally, we defer to a trial court's findings when

"substantially influenced by [the court's] opportunity to hear and see the


                                                                         A-1480-18T1
                                      13
witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." Ibid. (internal quotation marks omitted) (quoting Robinson, 200 N.J. at

15).

       The court found trial counsel was credible in asserting defendant did not

want to pursue a defense to the eluding charge based on mental deficiencies.

The credible evidence reflects defendant had made the same demand to his

initial attorney, as reflected in her letters to defendant. In Gorthy, 226 N.J. at

536, our Supreme Court recognized a competent defendant's ultimate right to

reject decisions of his attorney or the trial court to pursue an insanity defense,

holding:

             Having found the defendant to be competent and
             explained the consequences of the defendant's decision,
             the trial court should respect the defendant's
             independent choice. A competent defendant is deemed
             capable of deciding whether or not to assert a defense.
             See N.J.S.A. 2C:4-4. His or her decision may not align
             with counsel's considered advice. It may not represent
             sound trial strategy. It constitutes, however an exercise
             of the defendant's autonomy.

             [(footnote omitted).]

Thus, we cannot conclude counsel was ineffective for raising the defense

opposed by defendant. According to counsel, it was not until months after the




                                                                          A-1480-18T1
                                       14
trial when defendant belatedly expressed to him a desire to pursue an insanity

defense.

      The court agreed with counsel there was no reasonable basis for counsel

to question defendant's position to pursue a defense that he mistakenly believed

he was being escorted back to Fort Dix, because Dr. Paul opined he was

competent to stand trial and counsel's pre-trial preparation with him indicated

he understood the charges he faced. As the court found, defendant did not

inform counsel of his most recent hospitalization prior to the incident, which

defendant contends should have made counsel aware he was suffering from his

delusional condition during the incident.

      We discern no reason to question counsel's trial strategy based upon

defendant's competency to stand trial, the evidence available to counsel at the

time, and counsel's consultation with defendant. Fritz, 105 N.J. at 54 (holding

"complaints 'merely of matters of trial strategy' will not serve to ground a

constitutional claim of inadequacy . . . ."); see also State v. Echols, 199 N.J. 344,

357-59 (2009) ("[A]n otherwise valid conviction will not be overturned merely

because the defendant is dissatisfied with his or her counsel's exercise of

judgment during the trial.").     Moreover, we cannot conclude counsel was




                                                                             A-1480-18T1
                                        15
ineffective where the evidence suggests defendant's claim for relief is based on

his second thoughts after his own initial strategy proved unsuccessful.

      Although the court did not comment on the impact of Dr. Weiss's opinion

defendant was not mentally competent when the incident occurred, this does not

alter our view of his ruling. The court's rejection of defendant's PCR claim was

based on the information available to counsel at the time of trial and defendant's

refusal to pursue a defense based upon his history of mental illness. Moreover,

the court was not required to blindly accept the psychologist's opinion. See

Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002) (noting that "[a]

trial court is free to accept or reject the testimony of either side's expert," in full

or in part).

                                          IV

      Lastly, we address defendant's contention the court erred in denying his

constitutional right to represent himself at the PCR evidentiary hearing.

Specifically, he contends he was capable of competently representing himself to

establish trial counsel "failed to investigate and present mental health defenses,"

but the court did not focus on this, instead concentrating on how he would

"perform at a new trial." We disagree.




                                                                               A-1480-18T1
                                         16
      A defendant's right to self-representation is well settled. "[A] defendant

has a constitutionally protected right to represent himself in a criminal trial."

Faretta v. California, 422 U.S. 806, 816 (1975); see State v. DuBois, 189 N.J.

454, 465 (2007). However, because a waiver of the right to counsel constitutes

a relinquishment of "many of the traditional benefits associated with" that right,

it must be made "knowingly and intelligently." Faretta, 422 U.S. at 835. When

a criminal defendant requests self-representation, the court must "engage in a

searching inquiry" with him to determine whether the defendant understands the

implications of the waiver. State v. Crisafi, 128 N.J. 499, 510 (1992).

      In Crisafi, the Court held that a trial court must inform the defendants of

"the nature of the charges against them, the statutory defenses to those charges,

and the possible range of punishment." Id. at 511. The court should also tell

the defendants of "the technical problems they may encounter in acting as their

own counsel and of the risks they take if their defense is unsuccessful." Id. at

511-12.   The defendants should be cautioned that they must conduct their

defense in accordance with the relevant rules of procedure and evidence, that "a

lack of knowledge of law may impair their ability to defend themselves," and

that in general it may be unwise not to accept counsel's assistance. Id. at 512.




                                                                          A-1480-18T1
                                       17
      Over two decades later in State v. Reddish, 181 N.J. 553, 594 (2004), the

Court expanded the Crisafi inquiry.

            [T]he Crisafi/Reddish inquiry now requires the trial
            court to inform a defendant asserting a right to self-
            representation of (1) the nature of the charges, statutory
            defenses, and possible range of punishment; (2) the
            technical problems associated with self-representation
            and the risks if the defense is unsuccessful; (3) the
            necessity that defendant comply with the rules of
            criminal procedure and the rules of evidence; (4) the
            fact that the lack of knowledge of the law may impair
            defendant's ability to defend himself or herself; (5) the
            impact that the dual role of counsel and defendant may
            have; (6) the reality that it would be unwise not to
            accept the assistance of counsel; (7) the need for an
            open-ended discussion so that the defendant may
            express an understanding in his or her own words; (8)
            the fact that, if defendant proceeds pro se, he or she will
            be unable to assert an ineffective assistance of counsel
            claim; and (9) the ramifications that self-representation
            will have on the right to remain silent and the privilege
            against self-incrimination.

            [DuBois, 189 N.J. at 468-69.]

In ascertaining whether a defendant's "knowingness" is "real or feigned," a trial

court should "ask appropriate open-ended questions that will require [the]

defendant to describe in his own words his understanding of the challenges that

he will face . . . ." Reddish, 181 N.J. at 595.

      Ultimately, the focus "must be on the defendant's actual understanding of

the waiver of counsel." Crisafi, 128 N.J. at 512. All reasonable presumptions

                                                                          A-1480-18T1
                                        18
against waiver should be indulged. State v. Gallagher, 274 N.J. Super. 285, 295

(App. Div. 1994). However, a defendant should not be deprived of the right of

self-representation based solely on "the complexity of the proceedings or the

magnitude of the consequences" he faces. State v. Russo, 243 N.J. Super. 383,

401 (App. Div. 1990).

      Additionally, the goal of the court's colloquy with a defendant is not to

explore whether he possesses any particular "technical legal knowledge," State

v. King, 210 N.J. 2, 19 (2012), and a defendant need not demonstrate "the skill

and experience of a lawyer" before a knowing and voluntary waiver is found ,

Reddish, 181 N.J. at 595. Finally, if the appropriate colloquy is conducted and

it is determined that the defendant's waiver of counsel is knowing and voluntary,

that choice "must be honored" even if the court feels it is a "poor" or "unwise"

one. Gallagher, 274 N.J. Super. at 296; State v. Thomas, 362 N.J. Super. 229,

242-43 (App. Div. 2003).

      While the court at times appeared to stress defendant's lack of relevant

procedural and substantive law knowledge, we are satisfied it did not abuse its

discretion in denying defendant's motion to represent himself. Our review of

the transcripts in which the court conducted its inquiry reveals that, although

defendant provided responses to the court's questioning, those responses were


                                                                         A-1480-18T1
                                      19
general and superficial and did not evidence appreciation for the "fundamental

legal rights and issues that will be affected by his decision." Reddish, 181 N.J.

at 592.   Therefore, the record fully supports the court's determination that

defendant should not have been allowed to represent himself during the

evidentiary hearing.

            Affirmed.




                                                                         A-1480-18T1
                                      20
