                                NOT FOR PUBLICATION WITHOUT THE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-3321-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD C. SPELLMAN,
a/k/a CHIEF SPELLMAN,
and CHIEF BLOOD,

     Defendant-Appellant.
_________________________

                    Submitted July 8, 2019 – Decided July 15, 2019

                    Before Judges Yannotti and Haas.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment Nos. 08-09-
                    0644, 08-09-0645 and 08-09-0646.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kisha M. Hebbon, Designated Counsel, on
                    the brief).

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Rory A. Eaton, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Richard Spellman appeals from the January 16, 2018 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      As discussed in our opinion on defendant's direct appeal, after the trial

court denied defendant's motion to suppress a recorded statement he gave to the

police, he pled guilty to a number of charges, including two counts of second-

degree aggravated assault; two counts of first-degree robbery; and a series of

weapons offenses. State v. Spellman, No. A-4233-12 (App. Div. May 21, 2015)

(slip op. at 1-2). The court sentenced defendant to an aggregate seventeen-year

term, subject to an 85% period of parole ineligibility pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, and ordered defendant to serve a five-

year term of parole supervision following his release from prison. Id. at 2.

      Defendant appealed his conviction and sentence.        Ibid. We affirmed

defendant's convictions, but remanded the matter for resentencing . Id. at 16.

On remand, the court sentenced defendant to a sixteen-year aggregate term,

subject to NERA.

      Defendant then filed his petition for PCR, contending that his trial counsel

rendered ineffective assistance due to the attorney's failure to: (1) present


                                                                          A-3321-17T1
                                        2
evidence of defendant's "mental illness" at the Miranda1 hearing; and (2) conduct

an adequate investigation into a possible diminished capacity defense and

discuss the "pros and cons" of this argument with defendant prior to his plea. In

support of these assertions, defendant stated that his attorney secured a report

from an expert psychiatrist, who opined that defendant "was mentally ill at the

time [he committed] the alleged offenses." The expert stated that although

defendant was competent to stand trial and "could appreciate the wrongfulness

of his conduct, his behavior was significantly influenced by the presence of

mental illness in that his judgment was impaired and diminished capacity is

applicable." Although the expert did not render an opinion on the question of

whether defendant's condition adversely affected his ability to voluntarily waive

his Miranda rights, defendant argued that his attorney should have advanced this

argument at the suppression hearing. Defendant also asserted that his attorney

did not review the report with him prior to his acceptance of the plea, and never

explained why the attorney had decided to forego the pursuit of a diminished

capacity defense.

       In a thorough written opinion, Judge Anthony F. Picheca, Jr. considered

these contentions and denied defendant's petition for PCR. The judge concluded


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-3321-17T1
                                       3
that defendant failed to satisfy the two-prong test of Strickland v. Washington,

466 U.S. 668, 687 (1984), which requires a showing that trial counsel's

performance was deficient and that, but for the deficient performance, the results

would have been different.

      In so ruling, the judge first determined that defense counsel's "decision

. . . not to pursue the argument that [d]efendant lacked capacity to waive his

Miranda rights was a strategic decision within the wide spectrum of reasonable

and competent representation." The judge noted that the State had produced an

expert of its own, who contradicted the opinions presented by defendant's

proposed witness on the question of whether defendant suffered from a

diminished capacity. In addition, both witnesses agreed that defendant was

competent to stand trial, and neither addressed the issue of whether defendant

suffered from a mental illness that deprived him of the ability to voluntarily

waive his Miranda rights.      The record also reflected that defense counsel

reviewed both reports before making a professional judgment not to attempt to

rely on his expert's report at the suppression hearing.

      The judge further found that even if defense counsel should have

attempted to introduce the report at the hearing, it would not have affected the

outcome of that proceeding. In this regard, the judge pointed to our observation


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                                        4
on direct appeal that "[t]he fact that [a] defendant . . . suffer[s] from a mental

illness at the time of the questioning [does] not render his [or her] waiver or his

[or her] statement involuntary."     Spellman, (slip op. at 11) (alterations in

original) (internal quotation marks omitted) (quoting State v. Smith, 307 N.J.

Super. 1, 10 (App. Div. 1997)). Instead, a defendant's "statement is admissible

so long as it 'was the product of a free and deliberate choice rather than

intimidation, coercion or deception.'" Ibid. (quoting Smith, 307 N.J. Super. at

11).

       Applying this standard, we concluded that the DVD of defendant's

statement to the police "show[ed] that defendant understood, and was fully

responsive to, the questions posed by the detectives." Id. at 12. There was "no

evidence of police coercion[,]" "[t]he interview only lasted approximately forty

minutes, and the questioning was conversational in tone." Ibid. Thus, any

argument raised by defendant based on his alleged mental illness would not have

been successful at the suppression hearing.

       Judge Picheca also rejected defendant's bald assertion that his attorney

failed to discuss the advantages and disadvantages of proceeding to trial on the

basis of a diminished capacity defense. The judge found that during defendant's

plea colloquy, he repeatedly stated that his attorney had answered all of his


                                                                           A-3321-17T1
                                        5
questions over the four years the attorney represented him, including "the

possibility of an insanity defense[.]" Accordingly, the judge concluded that

            not only was [d]efendant aware that by pleading guilty
            he was waiving possible defenses based on his capacity
            but also that he had adequate opportunity to obtain
            advi[c]e from counsel regarding same. Defendant
            indicated during the plea colloquy that he had sought
            such advice and was satisfied with the responses he
            received from counsel.

      The judge also found that an evidentiary hearing was not necessary

because defendant failed to prove a prima facie case of ineffective assistance.

This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO DETERMINE THE MERITS OF HIS
            CONTENTION THAT HE WAS DENIED THE
            RIGHT TO THE EFFECTIVE ASSISTANCE OF
            COUNSEL.

            A.    The Prevailing Legal Principles Regarding
                  Claims Of Ineffective Assistance Of Counsel,
                  Evidentiary Hearings And Petitions For [PCR].

            B.    Trial Counsel Rendered Ineffective Legal
                  Representation By Virtue Of His Failure To
                  Conduct A Thorough Pretrial Investigation Into
                  Potential Defenses And To Present Evidence of

                                                                        A-3321-17T1
                                       6
                   Defendant's Mental Illness At The Miranda
                   Hearing.

            C.     Trial Counsel Rendered Ineffective Legal
                   Representation By Virtue Of His Failure To
                   Discuss The Pros And Cons Of All Possible
                   Defenses With Defendant Prior To Trial.

            D.     Defendant Is Entitled To A Remand To The Trial
                   Court To Afford Him An Evidentiary Hearing To
                   Determine The Merits Of His Contention That He
                   Was Denied The Effective Assistance Of Trial
                   Counsel.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel."         State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts

should grant evidentiary hearings and make a determination on the merits only




                                                                           A-3321-17T1
                                        7
if the defendant has presented a prima facie claim of ineffective assistance.

Preciose, 129 N.J. at 462.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his or her

right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52

(1987). Under the first prong of the test, the defendant must demonstrate that

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

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate with

"reasonable probability" that the result would have been different had he or she


                                                                            A-3321-17T1
                                         8
received proper advice from his or her trial attorney. Strickland, 466 U.S. at

694.

       Having considered defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially

for the reasons detailed at length in Judge Picheca's comprehensive written

opinion. The judge's conclusion that defense counsel's handling of the expert

report was sound, tactical strategy is firmly grounded in the record, which also

fully supports the judge's determination that the attorney adequately explained

his tactics to defendant prior to the entry of his plea. Under these circumstances,

the judge was not required to conduct an evidentiary hearing on defendant's PCR

application. Preciose, 129 N.J. at 462.

       Affirmed.




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