State of New Jersey v. Regina A. Wallace ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1719-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINA A. WALLACE,
Defendant-Appellant.
________________________
Submitted June 18, 2024 – Decided July 8, 2024
Before Judges Mawla and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Accusation No. 14-03-0131.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the briefs).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura Sunyak, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Regina Wallace appeals an October 13, 2022 order denying her
petition for post-conviction relief (PCR). We affirm substantially for the
reasons set forth by Judge J. Adam Hughes in his cogent written decision
accompanying the order.
I.
On October 31, 2012, defendant struck her sleeping mother in the head
and torso with a pickaxe then left her unattended and bleeding. Defendant's
mother died from the injuries. Defendant was charged with first-degree murder,
N.J.S.A. 2C:11-3(a)(2) (count one), and possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count two).1
On March 6, 2014, defendant pleaded guilty to first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1). The State recommended a thirty-year
sentence subject to twenty-five-and-a-half years of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. During the plea
allocution, defendant retained the right to request a lesser sentence based on her
mental health history.
1
The record is inconsistent as to whether the weapons charge against defendant
was in the second- or third-degree. Our analysis is unchanged under either
gradation.
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2
A sentencing hearing proceeded on May 2, 2014, at which defendant and
several of her family members testified. The sentencing court also reviewed the
report from Dr. Kenneth Weiss as to his evaluation of defendant, along with her
history of mental illnesses and hospitalizations. After the sentencing court
considered the totality of the evidence in light of the applicable aggravating and
mitigating factors under N.J.S.A. 2C:44-1, defendant was sentenced to a term of
twenty years with seventeen years of parole ineligibility, as required by NERA.
The sentencing court found the credible evidence supported a finding of
aggravating factors three, N.J.S.A. 2C:44-1(a)(3)—the risk that defendant will
commit another offense—and nine, N.J.S.A. 2C:44-1(a)(9)—the need to deter
defendant and others from violating the law. The court applied mitigating
factors four, N.J.S.A. 2C:44-1(b)(4)—substantial grounds tending to excuse or
justify the defendant's conduct, though failing to establish a defense—and seven,
N.J.S.A. 2C:44-1(b)(7)—defendant's lack of prior criminal history. It also
weighed mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11)—that imprisonment
of the defendant would entail excessive hardship.
The sentencing court was satisfied defendant's sentence would provide her
with the opportunity to receive extensive treatment for her mental illnesses prior
to release on probation. The court also found the aggravating and mitigating
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factors were balanced and, therefore, sentenced defendant to twenty years. The
twenty-year term of incarceration was in the midrange between the ten- and
thirty-year sentences recommended under the sentencing guidelines and less
than that sought by the State. Defendant appealed the sentence.
We affirmed defendant's term of incarceration on the sentencing oral
argument (SOA) calendar. State v. Wallace, No. A-0440-14 (App. Div. Jan. 13,
2015). On October 17, 2017, defendant filed her first PCR petition which she
subsequently withdrew on November 15, 2019.2 On January 26, 2021 defendant
filed a second PCR petition. After oral argument, Judge Hughes entered an
October 13, 2022 order accompanied by a thirteen-page written decision
denying defendant's PCR petition.
The judge found defendant filed her second PCR petition more than one
year after her first PCR petition was withdrawn in violation of Rule 3:22-
12(a)(2).3 The judge also found the refiled PCR petition was time barred by the
2
We note that the record is inconsistent as to the dates of previous filings. This
opinion uses the dates as set forth in Judge Hughes's decision. Our analysis is
unchanged under either timeline.
3
Rule 3:22-12(a)(2) provides that no second or subsequent petition shall be
filed more than one year from the events enumerated in (A), (B) or (C).
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five-year limitation under Rule 3:22-12(a)(1),4 even if he were to consider it a
first petition because of the COVID-19 pandemic. He also concluded that
defendant's PCR petition was procedurally barred under Rule 3:22-4 since she
had the opportunity to litigate the issues on direct appeal.
Nonetheless, the judge addressed the merits of defendant's PCR petition,
finding an evidentiary hearing was not necessary based on the record before the
sentencing court. He concluded any assertion that sentencing counsel's
performance fell below the objective standard was vague, conclusory, or
speculative and therefore did not warrant an evidentiary hearing.
The judge recounted that defendant's sentencing counsel submitted a
memorandum at the sentencing hearing detailing the applicable mitigating
factors. Defendant argued her counsel presented mitigating factors four, seven,
4
Rule 3:22-12(a)(1) requires that a first PCR petition be filed no later than five
years after the date of the judgment of conviction being challenged, subject to
certain enumerated exceptions.
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eight,5 nine,6 eleven, and twelve 7 to the sentencing court for consideration, but
did not argue factors eight and twelve. The judge found the sentencing court
nonetheless explicitly considered mitigating factors four, seven, nine, and
eleven, while implicitly rejecting factor eight through finding that aggravating
factor three applied. He concluded defendant's assertion that mitigating factor
twelve applied was "unclear and speculative."
The judge also addressed defendant's arguments that: 1) the sentencing
court did not properly balance the aggravating and mitigating factors; and 2)
both trial and appellate counsel were ineffective in failing to request a further
articulation by the sentencing court or file an appeal. On review, he conducted
a balancing analysis on the record, concluding mitigating factors four and seven
were balanced by aggravating factors three and nine and, therefore, a mid-range
sentence of twenty years, subject to NERA, was appropriate. The judge also
recognized that we affirmed defendant's sentence, finding it was properly
5
Mitigating factor eight is "[t]he defendant's conduct was the result of
circumstances unlikely to recur . . . ." N.J.S.A. 2C:44-1(b)(8).
6
Mitigating factor nine is "[t]he character and attitude of the defendant indicate
that the defendant is unlikely to commit another offense. . . ." N.J.S.A. 2C:44-
1(b)(9).
7
Mitigating factor twelve is "[t]he willingness of the defendant to cooperate
with law enforcement authorities. . . ." N.J.S.A. 2C:44-1(b)(12).
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balanced. Since counsel was able to achieve a sentence of ten years less than
the State's recommendation, defendant was not prejudiced.
This appeal followed. Defendant raises the following point for our
consideration:
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HER CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO ADVOCATE
ADEQUATELY AS TO HER SENTENCE.
II.
On appeal, defendant argues she is entitled to an evidentiary hearing on
her ineffective assistance of counsel claim because her trial and appellate
counsel failed to adequately advocate on her behalf regarding sentencing.
Defendant contends her trial counsel failed to argue the mitigating factors
contained in N.J.S.A. 2C:44-1(b)(8) and (12) applied; argue against the
application of aggravating factors pursuant to N.J.S.A. 2C:44-1(a)(3) and (9);
and argue for a proper balancing of the aggravating and mitigating factors.
Defendant also posits that appellate counsel rendered ineffective assistance at
the SOA hearing by failing to argue the trial court misapplied statutory
aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and did not balance all of
the applicable factors. Defendant further contends that since her arguments
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depend largely on extrinsic evidence outside the record, namely her testimony
and that of her attorney, this matter must be remanded for an evidentiary hearing.
Because Judge Hughes reached the merits of defendant's PCR petition, we
dispense with a discussion of whether the petition was time-barred or otherwise
procedurally barred pursuant to Rule 3:22-4(a). Instead, we address the merits-
based arguments on appeal.
PCR "is New Jersey's analogue to the federal writ of habeas corpus." State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
have been raised on direct appeal and, therefore, "ensures . . . a defendant was
not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997).
Where an evidentiary hearing has not been held on a PCR petition, we
"conduct a de novo review of both the factual findings and legal conclusions of
the PCR court." State v. Harris, 181 N.J. 391, 419-21 (2004) . However, "we
review under the abuse of discretion standard the PCR court's determination to
proceed without an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387,
401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).
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To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the familiar two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's "deficient
performance prejudiced the defense." Ibid. (quoting Strickland, 466 U.S. at
687).
When assessing the first prong, "[j]udicial scrutiny of counsel's
performance must be highly deferential." 466 U.S. at 68-69. "Merely because
a trial strategy fails does not mean that counsel was ineffective." State v. Bey,
161 N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance," and "the defendant must overcome the presumption that, under the
circumstances, the challenged action [by counsel] 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Under Strickland's second prong, the defendant must show
"the deficient performance prejudiced the defense." Id. at 687.
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In the context of sentencing, counsel owes a duty to proffer "mitigating
evidence in support of a lesser sentence" and failure to honor that obligation
denies a defendant the "constitutional right to the effective assistance of counsel
at sentencing." State v. Hess, 207 N.J. 123, 129 (2011). Sentencing hearings
afford defense counsel the "opportunity to make a vigorous argument regarding
mitigating and other circumstances, hoping to personalize defendant in order to
justify the least severe sentence under the Criminal Code." State v. Briggs, 349
N.J. Super. 496, 501 (App. Div. 2002).
"The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing." State v. Vanness, 474 N.J. Super. 609, 623 (App. Div.
2023) (citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).
The PCR court should grant an evidentiary hearing "only when: (1) the
defendant establishes a prima facie case in support of PCR; (2) the court
determines that there are disputed issues of material fact that cannot be resolved
by review of the existing record; and (3) the court determines that an evidentiary
hearing is required to resolve the claims asserted." Ibid. (citing State v. Porter,
216 N.J. 343, 354 (2013)).
We affirm the determination that defendant was not entitled to an
evidentiary hearing on her PCR petition. The record establishes the arguments
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asserted by counsel as well as the sentencing court's balancing of applicable
aggravating and mitigating factors to determine an appropriate sentence.
Therefore, no evidentiary hearing was necessary to develop a record for the trial
court to rule on defendant's PCR petition.
An evidentiary hearing was also unnecessary because the record does not
establish a prima facie case of ineffective assistance of counsel. Defendant has
not demonstrated that her attorneys' alleged acts or omissions fell below the
objective standard under which counsel's performance is evaluated for purposes
of determining the viability of a PCR petition. Even if defendant had presented
evidence that counsel's performance fell below the objective standard, defendant
was not prejudiced since she was sentenced to a term of ten years less than the
sentence recommended by the State under the plea agreement. As a result,
defendant has not established a prima facie showing of either Strickland prong.
We find no error with the judge’s conclusion that defendant's sentencing
counsel argued the applicable mitigating factors and, thus, counsel's
representation was not deficient. Defense counsel submitted a memorandum to
the sentencing court, highlighting mitigating factors four, seven, nine, and
eleven. Counsel further argued on the record the events on October 21, 2012
occurred because of defendant's mental health issues and, with proper treatment,
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defendant would not commit another offense. The sentencing court's rejection
of a portion of defendant's arguments and the sentence imposed after balancing
the relevant aggravating and mitigating factors does not establish ineffective
assistance of counsel.
We also reject defendant's argument that sentencing counsel failed to
insist the sentencing court explain its findings since those determinations are
already well-grounded in the record. Indeed, the sentencing court considered
counsel's arguments and found
mitigating factor number [four]. There are substantial
grounds . . . not to excuse [defendant], but fail to
establish a legal defense under New Jersey statutes,
namely [defendant's] serious and long lasting mental
health history. Number [seven], [defendant has] never
been arrested, never been convicted of any crime in her
life. [The court] cannot apply number [nine] because,
as I said, [defendant] has [a] mental illness. [The court]
considered number [eleven], the imprisonment of the
defendant will cause excessive hardship.
We discern no error in Judge Hughes's conclusion that mitigating factor
eight was implicitly addressed by the sentencing court when it found
aggravating factor three was applicable based on defendant's mental illness and
potential to harm others, since she was able to take her own mother's life. There
was a factual basis in the record for finding aggravating factor three, the risk
that defendant will commit another offense, based on defendant's then-mental
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health status. This finding demonstrates that the sentencing court implicitly
rejected mitigation by way of circumstances unlikely to recur, under factor eight.
Defendant did not provide any factual basis supporting the argument that
mitigating factor twelve applies.
Defendant has failed to show there would have been a different outcome
if counsel's performance at the sentencing hearing had been different. Both
defense counsel and the witnesses that testified humanized defendant and
provided support for the successful argument that a reduction in the
recommended sentence was appropriate. The sentencing court considered
defense counsel's arguments and balanced both the aggravating and mitigating
factors prior to determining that incarceration for ten years less than the State's
recommendation was appropriate.
Nor did defendant establish appellate counsel's arguments were
objectively deficient. Even if we accept defendant's assertion that appellate
counsel should have made further arguments regarding the sentencing court's
balancing of the aggravating and mitigating factors, defendant was not
prejudiced since we affirmed the reduced sentence.
Since defendant has not established a prima facie case of ineffective
assistance of counsel by establishing any objective deficiency in counsel's
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performance or prejudice resulting from counsel's representation, we affirm the
order denying her PCR petition without an evidentiary hearing. To the extent
we have not addressed an argument raised on this appeal, it is because it lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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