SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2488-21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. DA NIEL C. EVERETT, Defendant-Appellant.

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Submitt ed January 8, 2024

– Decided January 26, 2024 Before Judges Sabatino and Marczyk. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15

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. Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Angelo J. Onofri , Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Assistant Prosecutor , of counsel and on the brief ).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 248 8-21

This is an appeal of the denial of a post -conviction relief (" PCR " ) petition without an evidentiary hearing. We affirm, substantially for the cogent reasons expressed in Judge Janetta D. Marbrey' s written opinion of March 14, 2022. The tragic case arises out of a fatal accident in w hich a commercial dump truck driven by defendant Daniel C. Everett struck the victim' s car at about 2:15 p.m. on July 17, 2014. Defendant had caused three other motor vehicle collisions earlier that day, all minor and none of them fatal. The first collision occurred at 8:07 a.m.; the second at 11:45 a.m., an d the third at 1:15 p.m. Police officers responded to two of those three earlier ac cidents, but they did not prevent defendant from resuming his driving. Before the fourth and final accident, defendant tex ted his wife and expressed concerns about the condition of h is truck's brakes. His wife , meanwhile, raised concerns in their text exchange a bout his mental state. Altho ugh she did not tell him this until after the fatal collision, his wife had noticed that he had lapsed into a "fugue state" on two rece nt occasions. He also had been diagnosed with diabetes about two months e arlier. Defendant was arrested after the fatal accident and taken to a hospital. A toxicology report detected no alcohol in his bloods tream and no controlled dangerous substances except for Xanax, which he sai d had been prescribed to3 A- 248 8-21

him for a work-related injury. About nine months after the accident, defendant underwent a sleep study that diagnosed him with mil d apnea. Defendant was charged by indictment with second-deg ree death by auto , N.J.S.A. 2C:11-5(a), a form of reckless manslaughte r. He had no previous indictable convictions. Pursuant to a negotiated agreement, the State conse nted to have defendant sentenced one-degree lower, down to the third-degre e range. The agreement specified a three-year maximum custodial term, subj ect to parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:4 3-7.2 ("NERA"). In June 2017, defendant pled guilty in accordance w ith the agreement. At the plea hearing, defendant admitted to the court t hat he had been reckless in continuing to drive after the first three accidents

. During the hearing, defendant's attorney asked him several questions ab out his mental state leading up to the accidents, referencing his text messages with his wife and her past observations of his fugue state. Among other thing s, counsel showed that the texts reflected concerns by defendant and his wife before the accident that a low blood sugar level could have been affecting him. The trial court accepted defendant's guilty plea as knowing, intelligent, and voluntary. The court also confirmed with defendant that he was satisfied with his attorney' s services.4 A- 248 8-21

The sentencing was delayed for over a year to enabl e defendant to undergo back surgery and address other health issues. He w as eventually sentenced in October 2018. In arguing for leniency, defense cou nsel suggested to the court th at defendant may have been suffering from chronic t raumatic encephalopathy ("CTE" ). Consistent with the plea agreement, the court tre ated defendant as a third-degree offender and imposed a three-year NERA sentence. In November 2019, defendant timely filed the presen t PCR petition. He argues his plea counsel was constitutionally ineffe ctive by failing to investigate his case sufficiently. In particular, he contends his counsel should have explored more deeply a potential medical explanation for his driving behavior. Defendant asserted his belief that "the combination of sleep apnea and [his] uncontrolled blood sugar was the cause of the [fatal] accident." He posits that had his counsel been more diligent, he would not have pled guilty a nd instead would have gone to trial. After hearing oral argument on the PCR petition, Ju dge Marbrey issued her nine -page written opinion rejecting defendant's content ions. The judge found that plea counsel's performance was not defic ient. Among other things, she noted that during both the plea hearing and the sentencing, "counsel clearly addressed [defendant's] ongoing cognitive issues." The judge deemed defendant's claims that counsel was inattentive to his medical conditions as5 A- 248 8-21

unsubstantiated "bald assertions." The judge found it reasonable to infer that counsel, who was clearly aware of his client's medi cal circumstances, strategically chose to pursue plea negotiations rat her than risk advancing a medical defense at trial. The judge also highlight ed defendant's admission that he knew his decision to keep driving after the firs t three accidents earlier the same day was reckless. On appeal, defendant presents this argument in his brief:
POINT I MR. EVERETT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION, CAUSING HIM TO PLEAD GUILTY WHEN HE OTHERWISE WOULD HAVE PROCEEDED TO TRIAL. In assessing this argument, we are guided by well-s ettled principles. A defendant seeking relief because of the alleged con stitutionally ineffective assistance of counsel must demonstrate: (1) deficie nt performance by counsel, and (2) actual prejudice flowing from that performa nce. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Stat e v. Fritz, 105 N.J. 42, 52 (1987). In the context of a defense that culminate d, as here, with a plea agreement, the defendant must show with "'reasonable probability'" that the6 A- 248 8-21

result would have been different had plea counsel t aken a different course of action. Lafler v. Cooper, 566 U.S. 156, 163 (2012) (quoting Strickland , 466
U.S. at 694 )

. Our courts afford substantial deference in this re gard to strategic decisions made by a trial attorney. State v. Arthur , 184 N.J. 307, 322-23 (2005). Applying these principles, we concur with Judge Marbrey 's sound analysis. Defendant presents no expert reports substa ntiat ing his theory that his driving behavior on the day of the fatal crash was caused by a combination of diabetes , sleep apnea, and an uncontrolled blood sugar. More over, even if he tendered such an expert medical opinion, it would n ot have necessarily persuaded a jury to exonerate his conduct, particularly g iven his own admission that it was reckless to have continued driving after the fir st three accidents. W e must also be mindful that defendant initially had b een facing a second-degree sentencing exposure of up to ten years of imprisonment; the third-degree sentence of three years that his plea counsel favor ably negotiated was a significant achievement. Because defendant failed to advance a prima facie c ase of ineffective assistance, no evidentiary hearing was warranted. State v. Preciose, 129 N.J. 451, 462- 63 (1992). Affirmed.