STATE OF NEW JERSEY VS. MICHELET GLAUDE (10-01-0213, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0541-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHELET GLAUDE,
Defendant-Appellant.
________________________
Submitted February 6, 2019 – Decided March 11, 2019
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-01-0213.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Michelet Glaude appeals from a December 9, 2016 order
denying his petition for post-conviction relief (PCR).
Defendant raises the following points of argument in his counseled brief:
Point One – THE PCR COURT ERRED BY DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING ON THE
ISSUES OF THE TRIAL COURT'S DENIAL OF A
PSYCHIATRIC EXAMINATION AND TRIAL
COUNSEL'S FAILURE TO ENGAGE EXPERT
WITNESSES.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS FOR
INEFFECTIVE ASSISTANCE OF COUNSEL,
EVIDENTIARY HEARINGS AND PETITITIONS
FOR POST-CONVICTION RELIEF.
B. The Denial of a Competency Hearing.
C. The Failure to Engage Expert Witnesses.
In a pro se supplemental brief that does not have point headings, defendant
repeats essentially the same arguments. After reading the record, we conclude
that all of defendant's arguments are without merit and, except as briefly
addressed below, they do not warrant discussion. R. 2:11-3(e)(2). We affirm
substantially for the reasons stated by the PCR judge in his written opinion
issued with the order. We add these comments.
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A jury convicted defendant of first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1);
second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-
1(b)(1); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); third-degree
criminal restraint, N.J.S.A. 2C:13-2; and third-degree unlawful taking of a
means of conveyance, N.J.S.A. 2C:20-10(c). He was sentenced to an aggregate
term of twenty-five years in prison, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on defendant's
direct appeal. State v. Glaude, No. A-3425-11 (App. Div. Nov. 25, 2014), certif.
denied, 221 N.J. 287 (2015).
The trial evidence was detailed in our opinion on the direct appeal and
need not be repeated here. To briefly summarize, defendant was accused of
brutally assaulting and mutilating his former girlfriend. At his trial, defendant
did not deny the charges but claimed that he was highly intoxicated at the time
and could not remember assaulting the victim. However, as we noted in our
opinion, an Alcotest administered about three hours after the incident did not
reveal a very high blood alcohol level. Moreover, in his trial testimony
defendant recalled many details surrounding the incident, although he claimed
not to remember the attack itself.
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In his PCR petition, defendant claimed that his trial counsel was
ineffective because she did not present expert testimony to support an
intoxication defense. Like the PCR judge, we find no merit in that assertion.
On a PCR petition, if a defendant claims that his trial attorney should have called
a witness to testify at the trial, the defendant must provide legally competent
evidence of what the witness would have said if called at trial. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Bald assertions are
insufficient to present a prima facie case of ineffective assistance of counsel.
Ibid. Defendant did not provide the report of an expert witness to support his
PCR claim that, had his trial counsel retained an expert, the expert would likely
have provided testimony to support an intoxication defense. Further, neither
defendant's blood alcohol level nor his trial testimony suggest the likelihood that
his trial counsel could have found such an expert.
Defendant also asserted that his trial counsel should have retained a
psychiatric expert to support a claim that defendant was not competent to stand
trial. He further claimed that his appellate counsel should have raised on appeal
the trial court's denial of defense counsel's request for a court-ordered
competency examination. However, defendant's PCR petition was devoid of
medical records or an expert report to support his claim that he suffered from a
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mental illness, much less one that rendered him incompetent to stand trial. In a
pretrial hearing, the trial judge questioned defendant in detail and concluded that
there was no basis to order a competency examination. We have reviewed the
transcript of the voir dire and find no error in the judge's conclusion.
Like his claim regarding the intoxication defense, defendant's PCR claims
relating to his alleged lack of competency to stand trial were based on bald
assertions. Cummings, 321 N.J. Super. at 170. Defendant did not provide
legally competent evidence that his trial counsel was ineffective in failing to
retain experts, or that the experts, if retained, would have provided testimony
that could have changed the outcome of the trial. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Nor was his appellate counsel ineffective for failing
to raise a meritless appellate argument. Having failed to present a prima facie
case as to either prong of the Strickland test, defendant was not entitled to an
evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451,
462 (1992).
Affirmed.
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