                                NOT FOR PUBLICATION WITHOUT THE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-4608-16T1


STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

VICTOR MUGLIA,

     Defendant-Appellant.
________________________________

                   Submitted September 21, 2018 – Decided October 9, 2018

                   Before Judges Simonelli and O'Connor.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 08-11-0949.

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

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (Joie Piderit, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Victor Muglia appeals from a May 1, 2017 order denying the

relief he sought in his petition for post-conviction relief (PCR). For the reasons

that follow, we affirm.

                                        I

       In August 2010, defendant pleaded guilty to first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2). In October 2010, the court sentenced him to a thirty-

eight year term of imprisonment.       Defendant filed a direct appeal, but we

affirmed his conviction and sentence. State v. Muglia, No. A-4368-10 (App.

Div.      Jan. 17, 2013).   The Supreme Court denied defendant’s petition for

certification. State v. Muglia, 214 N.J. 235 (2013).

       The evidence underlying defendant's conviction is set forth in our opinion

and need not be repeated at length here. However, for context, we provide the

evidence pertinent to the issues under review. Just weeks before his eighteenth

birthday, defendant struck his mother to death with a crowbar. When the

victim’s sister did not get an anticipated telephone call from the victim the

following day and ascertained the victim was not at work, she contacted the

police.

       The police went to defendant's home, where he lived with this mother, to

conduct a welfare check. When they arrived, defendant was outside of the home


                                                                         A-4608-16T1
                                        2
and informed the police that he was locked out. When asked where his mother

was, defendant replied she was at work. One of the officers entered the home

through an unlocked sliding door.       The police did not immediately see

defendant's mother but noticed blood on a door handle inside of the home.

       An officer noticed defendant was becoming nervous and suspected he

knew more than he was revealing. Therefore, he decided to ask defendant

questions. Before doing so, the officer advised defendant of his Miranda1 rights.

Defendant then volunteered that two men had entered the house. The officer

asked where the men took his mother, and defendant stated his mother was dead.

The police continued to search the house and eventually found the mother's body

in a plastic bag in the basement.

       Defendant was taken to police headquarters. Because he was a still a

minor, the police contacted defendant’s father, advised him that his son was a

suspect in a homicide, and asked permission to interview defendant.

Defendant’s father provided consent, and also stated he did not want to be

present during the questioning of his son.      Thereafter, the police advised

defendant of, and he waived, his Miranda rights. During questioning, defendant

confessed to killing his mother.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-4608-16T1
                                       3
      After a juvenile delinquency complaint was filed charging defendant with

an offense which, if committed by an adult, would constitute the crime of first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2). The Family Part waived

jurisdiction and the matter proceeded against defendant as an adult in the Law

Division. A grand jury subsequently indicted him on the murder charge as well

as additional related charges.2 Defendant filed a motion to suppress the evidence

police obtained when searching his home, as well as the statements he gave to

them. In support of the latter, defendant contended that, due to his father's

learning disabilities, his father did not knowingly and intelligently waive his

right to be present while his son was questioned by the police, rendering all of

defendant’s statements inadmissible. During the suppression hearing, defendant

called a psychologist, who provided testimony in support of his contention.




2
    These additional charges were first-degree murder during the commission or
attempt to commit a robbery, N.J.S.A. 2C:11-3(a)(3); first-degree robbery,
N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d); third-degree providing false information to law enforcement
officers with the purpose of hindering an investigation, N.J.S.A. 2C:29 -3(b)(4);
third-degree concealing or destroying evidence of a crime with the purpose of
hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering
with physical evidence of a crime, N.J.S.A. 2C:28-6(1).



                                                                        A-4608-16T1
                                       4
      The trial court denied defendant's suppression motion. The court

concluded the officers' entry and search of the home was justified under the

community caretaking and emergency aid doctrines; the statements defendant

gave to the police in his home were not subject to Miranda because they had

been properly elicited by the police in emergent circumstances; defendant’s

father validly exercised his right not to be present during defendant's

interrogation; and defendant gave his statements to the police at the station after

providing a knowing, voluntary and intelligent waiver of his Miranda rights.

      Before the suppression hearing, defendant obtained an expert’s report of

another psychologist, specifically, Matthew B. Johnson, Ph.D.           Defendant

retained Johnson to explore the question of whether his mental state at the time

of the offense supported a diminished capacity defense 3 and, further, rendered


3
    As set forth in State v. Baum, 224 N.J. 147, 160-61 (2016):

            A defendant may raise a diminished capacity defense
            if (1) he or she "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 did
            affect the defendant's cognitive capacity to form the
            mental state necessary for the commission of the
            crime."



                                                                          A-4608-16T1
                                        5
defendant unable to provide a knowing and voluntary waiver of his Miranda

rights. Johnson furnished defendant with a lengthy expert’s report, in which he

noted, among other things, that defendant "clearly acknowledged [to me that] he

was aware the assault on his mother was wrong and illegal, and he deliberated

about the assault prior to committing it."

      However, Johnson also stated defendant had chronically abused various

substances, which had an "adverse effect on his acute and residual cognitive

functioning." Johnson further suggested the homicide may have been related to

a "paradoxical reaction to benzodiazepines," observing that in certain patients

benzodiazepines can cause hostility and rage. Johnson cited an article that stated

in "extreme cases," a patient may not have "conscious control over their

actions."   Johnson found defendant possessed "noteworthy risk factors" for a

paradoxical reaction to benzodiazepines, and recommended defendant consult

with or be examined by a psycho-pharmacologist, neuropsychologist, or

psychiatrist.

      At the suppression hearing, defendant did not assert his ability to waive

his Miranda rights was compromised for the reasons suggested in Johnson’s




                [(alteration in original) (quoting State v. Galloway, 133
                N.J. 631, 647 (1993)).]
                                                                            A-4608-16T1
                                           6
report.      Further, the record does not indicate defendant ever asserted a

diminished capacity defense before pleading guilty.

      On October 25, 2013, defendant filed a pro se petition for PCR, alleging

plea counsel had been ineffective. Defendant’s PCR counsel subsequently filed

an amended petition and brief on his behalf. The issues defendant raised before

the PCR court relevant to the issues on appeal were that plea counsel failed to:

(1) submit evidence during the suppression hearing of defendant’s mental state

at the time he waived his Miranda rights, and (2) investigate or raise before the

trial court a diminished capacity defense.

          In an order dated December 11, 2014, the PCR court denied defendant’s

request for PCR. However, before doing so, the court declined defendant’s

request for oral argument. Defendant appealed and, on December 1, 2016, we

entered an order sua sponte, see R. 2:8-3(b), summarily reversing because

defendant was denied the opportunity to present oral argument.

          Following oral argument on remand, the PCR court found defendant

failed to set forth a prima facie case of ineffective assistance of counsel. The

court issued a written opinion, in which it observed defendant never submitted

a report from a qualified expert establishing defendant suffered from a mental

defect that: (1) interfered with his ability to knowingly and voluntarily waive


                                                                        A-4608-16T1
                                        7
his Miranda rights; and (2) was sufficient to raise a diminished capacity defense.

The court noted, "[a]ll that Dr. Johnson is saying is that this might be something

to look into. He is not opining on a diminished capacity defense. He is not even

addressing the Miranda issue."

      The court further observed defendant had admitted to Johnson he knew

what he was doing when he killed his mother, knew it was wrong, and had

"deliberated about the crime, tried to cover it up and thought he would get away

with it."   Finally, the PCR court noted there is no evidence Johnson, a

psychologist, possessed the expertise to render an opinion in pharmacology.

                                        II

      Defendant presents the following issues for our consideration in his

appeal.

            Point I: THE TRIAL COURT ERRED IN DENYING
            DEFENDANT’S        PETITION    FOR   POST
            CONVICTION        RELIEF    WITHOUT    AN
            EVIDENTIARY HEARING TO DETERMINE THE
            MERTIS 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 Post
                  Conviction Relief.


                                                                         A-4608-16T1
                                        8
                  B. Defendant Should Be Granted Post-
                  Conviction Relief Because Trial Counsel
                  Rendered Ineffective Legal Representation
                  By Virtue of His Failure To Raise the
                  Defense Of Diminished Capacity As A
                  Result Of Defendant’s Psychiatric History
                  And Struggles With Alcohol And Drugs.

                  C. 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
                  And Appellate Counsel.

      In his merits brief, defendant articulates his position as follows. If plea

counsel had raised the defense of diminished capacity, his confession would not

have been admissible, he would have proceeded to trial, and he would have been

convicted of a lesser-included offense or even acquitted. He further maintains

the PCR court was required to hold an evidentiary hearing. Defendant did not

articulate any argument against appellate counsel.

      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 (1984), and adopted by our Supreme Court in State

v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must establish that: (l) counsel's performance

was deficient and that he or she made errors so egregious counsel was not

                                                                        A-4608-16T1
                                       9
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, 466 U.S. at 694.

      When a defendant has pled guilty, the second prong a defendant must

fulfill is that "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)).

      The defense of diminished capacity requires a defendant to provide

"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," see State v. Galloway, 133 N.J. 631, 647 (1993), and that there is a

connection "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).

      Here, defendant has not provided any evidence he in fact suffered from

diminished capacity at the time he committed the murder, or had a mental or


                                                                              A-4608-16T1
                                         10
psychological affliction that affected his ability to render a knowing and

intelligent waiver of his Miranda rights. As we stated in State v. Cummings,

321 N.J. Super. 154 (App. Div. 1999):

            [T]o establish a prima facie claim, 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. Thus, when a petitioner claims his trial
            attorney inadequately investigated his case, he must
            assert the facts that an investigation would have
            revealed, supported by affidavits or certifications . . . ."

            [Id. at 170.]

      Defendant claims that if plea counsel had raised the defense of diminished

capacity, other events would have followed that would have resulted in his being

convicted of a lesser-included offense or even acquitted. However, his claims

are nothing but bald assertions. None of his claims is tethered to a qualified

expert’s opinion that establishes that he (1) had a mental disease or defect at the

time of the offense that hindered his cognitive ability to prevent or interfere with

the formation of the requisite mens rea, or (2) suffered from an affliction that

deprived him of the ability to knowingly and intelligently waive his Miranda

rights.

      As defendant did not provide the requisite proof to support a claim that

plea counsel failed to marshal the subject evidence, we conclude defendant

                                                                           A-4608-16T1
                                        11
failed to make a prima facie showing of ineffectiveness within the Strickland-

Fritz test.   Accordingly, the PCR court correctly concluded an evidentiary

hearing was not warranted, see State v. Preciose, 129 N.J. 452, 462-63 (1992),

and that defendant was not entitled to the post-conviction relief he sought.

      Affirmed.




                                                                         A-4608-16T1
                                      12
