STATE OF NEW JERSEY VS. OSCAR CORTEZ (16-02-0472, 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NOT FOR PUBLICATION WITHOUT THE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-4438-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSCAR CORTEZ, a/k/a
OSCAR E. CORTEZ,
Defendant-Appellant.
_______________________
Submitted September 30, 2020 – Decided October 15, 2020
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-02-0472.
Peter D. Russo, attorney for appellant.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Barbara A.
Rosenkrans, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Oscar Cortez appeals from a May 1, 2019 order denying his
petition for post-conviction relief (PCR) after an evidentiary hearing. We
affirm.
Defendant, a permanent United States resident born in Colombia, was
indicted by a grand jury for third-degree possession of a controlled dangerous
substance (heroin), second-degree possession of heroin with the intent to
distribute, third-degree possession of heroin with the intent to distribute on
school property or within 1000 feet of school property, second-degree
possession of heroin with the intent to distribute within 500 feet of a public
housing facility, park or building, and fourth-degree resisting arrest.
Defendant pled guilty to possession of heroin with intent to distribute in
a school zone and in exchange for his plea the State recommended a
probationary sentence and dismissal of the remaining charges. Judge John I.
Gizzo sentenced defendant in accordance with the plea agreement to a three-
year probationary term and assessed applicable fines and penalties.
At some point undisclosed in the record, immigration authorities instituted
removal proceedings against defendant. Defendant filed a timely PCR petition
alleging his trial counsel was ineffective because he failed to: 1) explore
potential "mental health defenses," 2) set forth a diminished capacity defense,
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and 3) advise him to seek the advice of an immigration attorney prior to entering
his plea.
Defendant supported his petition with an affidavit of his plea counsel in
which he admitted that defendant's girlfriend advised him that defendant had
"mental health issues." Counsel also admitted he did not explore defendant's
"mental health issues at the time of the plea" or "ask him if he was supposed to
be on psychiatric medication or if he had taken any at the time of the plea."
Defendant also attached a report from Dr. Grigory S. Rasin, M.D.
In his report, Dr. Rasin indicated he reviewed the plea transcript and
certain of defendant's medical records, including a January 7, 2018
psychological evaluation from Robert Johnson, M.A., LPC, LCADC, a certified
counselor. Dr. Rasin also conducted a psychiatric examination of defendant at
which time defendant advised Dr. Rasin that he used marijuana and cocaine on
the day he pled guilty and that his prescribed seizure medication made him
"stupid."
After considering these materials, and based on his evaluation, Dr. Rasin
concluded that defendant was "mentally and cognitively impaired" at his plea
hearing and was unable to "process the proceeding" including the fact that he
would likely be deported as a consequence of his guilty plea. He further opined
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that due to defendant's low IQ, use of illegal substances in combination with his
prescribed medication on the day of his plea, he "was highly suggestible and
influenced by his attorney in admitting the guilt."
Judge Gizzo granted defendant's request for an evidentiary hearing where
defendant's plea counsel testified. The judge also considered the transcript from
the plea hearing and Dr. Rasin's report.
In a May 1, 2019 written opinion, Judge Gizzo concluded that defendant
failed to satisfy either prong of the two-part test for ineffective assistance of
counsel detailed in Strickland v. Washington, 466 U.S. 688 (1984), and adopted
by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The
court determined that: 1) defendant's plea counsel did not have a reason to
conclude from the facts and circumstances surrounding his representation that
defendant suffered from a mental illness that prevented him from entering a
voluntary and knowing plea, 2) defendant was fully informed regarding the
immigration consequences of his plea, including the risk of removal, by plea
counsel and the court, and 3) there was no support in the record for a diminished
capacity defense.
On appeal, defendant argues:
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POINT I
IT WAS OBJECTIVELY DEFICIENT FOR
[DEFENDANT'S] ATTORNEY TO BE AWARE OF
MENTAL HEALTH ISSUES AND NOT AT LEAST
OBTAIN RECORDS AND EXPLORE POSSIBLE
DEFENSES.
POINT II
THE COURT ERRED BY GIVING NO WEIGHT TO
DR. RASIN'S REPORT BY DISMISSING IT AS
"SPECULATIVE"; THE DEFENDANT HAD
MENTAL [HEALTH] ISSUES THAT CLOUDED HIS
JUDGMENT.
POINT III
THE COURT ERRED BY HAVING THE CLIENT'S
ATTORNEY ACT AS MEDICAL DOCTOR AND
DECIDE THAT THE DEFENDANT DID NOT HAVE
A MENTAL ISSUE.
Our review of a PCR claim after a court has held an evidentiary hearing
"is necessarily deferential to [the] PCR court's factual findings based on its
review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see
also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court
has conducted an evidentiary hearing on a petition for PCR, we necessarily defer
to the trial court's factual findings."). Where an evidentiary hearing has been
held, we should not disturb "the PCR court's findings that are supported by
sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576
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(2015) (citations omitted). We review any legal conclusions of the trial court
de novo. Nash, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004).
Against this standard of review, we find no merit to the contentions raised by
defendant and affirm substantially for the reasons set forth by Judge Gizzo in
his written decision. We offer the following additional comments to amplify
our decision.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant "the
right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541
(2013) (quoting Strickland, 466 U.S. at 686). Under the first prong of the
Strickland standard, a petitioner must show counsel's performance was deficient.
Ibid. It must be demonstrated that counsel's handling of the matter "fell below
an objective standard of reasonableness," id. at 688, and that "counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment," id. at 687.
Under the second prong of the Strickland test, a "defendant must show
that the deficient performance prejudiced the defense." Ibid. A defendant must
demonstrate there is a "reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different. "
Id. at 694.
In the context of a PCR petition challenging a guilty plea based on the
ineffective assistance of counsel, the second prong is established when the
defendant demonstrates a "reasonable probability that, but for counsel's errors,
[the defendant] would not have pled guilty and 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)), and that "a decision to
reject the plea bargain would have been rational under the circumstances,"
Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
A petitioner must establish both prongs of the Strickland standard to
obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 687;
Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. A failure to satisfy either prong of
the Strickland standard requires the denial of a PCR petition. Strickland, 466
U.S. at 700.
With respect to defendant's first argument, Judge Gizzo found that at no
point during plea counsel's representation did counsel "feel any reason to believe
that [d]efendant suffered from any mental issues" that would render him unable
to enter a knowing and voluntary plea. The court's finding was amply supported
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by the record, which included testimony from plea counsel that he met with
defendant at least six times during his representation and defendant actively
participated in his defense. Plea counsel further testified that had he observed
defendant engage in any concerning behavior, he would have informed the court
and sought a medical evaluation as he did in other cases.
In addition, where, as in this case, a defendant claims that his or her trial
attorney "inadequately investigated his case, he must assert the facts that an
investigation would have revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
"[B]ald assertions" of deficient performance are insufficient to support a PCR
application. Ibid.
Before the PCR court defendant failed to identify any specific and relevant
medical record that existed at the time he sold heroin near a school, or when he
pled guilty, that would have informed counsel's consideration or affected the
outcome of the proceeding. In fact, the record fails to include an affid avit or
certification from defendant supporting any of his claims.
Further, "representations made by a defendant . . . concerning the
voluntariness of the decision to plead, . . . constitute a 'formidable barrier' which
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defendant must overcome." State v. Simon, 161 N.J. 416, 444 (1999) (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). "That is so because
[defendant's] '[s]olemn declarations in open court carry a strong presumption of
verity.'" Ibid. (quoting Blackledge, 431 U.S. at 74.)
Here, Judge Gizzo explained that he presided over defendant's plea
hearing and was "satisf[ied] that [d]efendant entered a knowing and voluntary
plea" and characterized defendant as "alert, lucid and responsive." The judge
further explained that defendant was primarily concerned with receiving a non -
custodial term and "not once objected . . . between plea and sentencing" to the
favorable plea offer or sought to proceed to trial.
Defendant's reliance on State v. O'Donnell, 435 N.J. Super. 351 (App.
Div. 2014), for the proposition that "an attorney's representation cannot be
considered effective if he . . . is aware that his client has mental health issues
but does not explore them" is misplaced as that case is factually distinguishable.
In O'Donnell, defendant's counsel previously advised defendant she had a
colorable diminished capacity defense to a murder charge based on a psychiatric
report that concluded defendant's "mental capacity was so impaired that she was
unable to engage in purposeful conduct." Id. at 362. The night before the plea
hearing, however, and after failing to ensure completion of a second psychiatric
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examination, counsel allegedly advised defendant to instead plead guilty to
murder with a thirty-year sentence and a thirty-year period of parole ineligibility
or she would "get life." Id. at 364-65.
After the trial court denied defendant's PCR petition and motion to
withdraw her guilty plea, we remanded the matter for an evidentiary hearing on
defendant's PCR claim. We concluded that "defendant presented a plausible
claim, supported by the court's finding of [plea counsel's] misrepresentation and
dereliction of professional duty, that her [plea counsel] failed to confer with her
to obtain a second expert opinion as promised and urged her to plead guilty
without adequate explanation . . . ." Id. at 376.1
1
The federal cases cited by defendant, see Newman v. Harrington, 726 F.3d
921 (7th Cir. 2013), Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005), and
Saranchak v. Beard, 616 F.3d 292 (3d Cir. 2010), are similarly distinguishable.
In Newman, unlike here, defendant's "petition was supported by a wealth of
evidence, including [a psychologist report] who opined that [defendant] had
cognitive deficits, specifically that he [was] moderately to mildly mentally
retarded" and was unfit to stand trial. Defendant's psychologist also stated that
defendant's "cognitive deficits [were] readily apparent" and "should have been
apparent to anyone who attempted to have a conversation with [him] . . . ."
Newman, 726 F.3d at 923. In Miller, defendant suffered from organic brain
syndrome, post-traumatic stress syndrome and difficulties with cognitive
function resulting from a car accident. Miller, 420 F.3d at 359. Instead of
calling an expert witness at trial to attest to these facts, counsel instead relied
upon testimony from defendant and her husband. Id. at 361-362. Finally, in
Saranchak, the court similarly concluded defendant's trial counsel was
ineffective for relying on lay testimony at defendant's degree of guilt hearing in
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The record here bears no similarity to that before the O'Donnell court.
First, unlike in that case, Judge Gizzo conducted an evidentiary hearing and
made comprehensive factual findings. Based on those findings, Judge Gizzo
correctly concluded there was no support in the record for a diminished capacity
defense and plea counsel was not derelict in his professional duties under the
performance prong of the Strickland test at any point in his representation of
defendant. Nor did plea counsel here mispresent any fact to defendant or
improperly recommend defendant plead guilty.
As to defendant's second point, and applying the aforementioned standard
of review, we have no reason to disturb Judge Gizzo's finding that Dr. Rasin's
opinions were speculative. Dr. Rasin opined on defendant's medical condition
over two years after the plea hearing. Although we recognize the necessary
retrospective nature of such reports, the record here is devoid of any medical
documentation contemporaneous with the commission of the offense or
defendant's plea that support Dr. Rasin's diagnoses or which identify the specific
medical condition defendant suffered from that diminished his ability to form
support of defendant's diminished capacity defense based on excessive alcohol
consumption rather than offer expert testimony. Saranchak v. Beard, 616 F.3d
at 308. As is readily apparent, the record of defendants' mental health issues,
and counsel's deficient performance and the resulting prejudice, in those cases
bears no resemblance to the facts and circumstances here.
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the mens rea for the school zone offense to which he pled guilty or from entering
a knowing and voluntary plea.
We also note that although Dr. Rasin stated that defendant self-reported
marijuana use the day of the plea hearing, defendant denied such use during the
plea hearing and he advised Robert Johnson that he stopped using marijuana
three years prior to January 7, 2018 and "had never had a dirty urine since." Mr.
Johnson also concluded that at the time of his January 7 evaluation, defendant
"showed remarkably good insight and his judgment seemed to be intact."
We also reject defendant's third point that defendant improperly acted as
a "medical doctor." As Judge Gizzo concluded, plea counsel's representation of
defendant was consistent with professional norms as required by Strickland.
Finally, we are satisfied that defendant failed to establish that there was a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S at 669, 694.
In sum, Judge Gizzo's conclusion that defendant failed to satisfy either the
performance or prejudice prong of the Strickland test is amply supported by the
record. To the extent we have not addressed any of defendant's arguments, it is
because we conclude they are without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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