COURT HOUSE – A Superior Court judge denied a petition for post-conviction relief submitted by the woman sent to prison for supplying the drugs that killed Cape May County Sheriff Robert Nolan’s son in July 2018.
As a result, Susan Mazzone will continue to serve the seven-year sentence handed down, subsequent to a guilty plea she entered, in February 2019, to first-degree strict liability for the drug-induced death of Eric Nolan.
The sentence is subject to the No Early Release Act (NERA), meaning Mazzone is not eligible for parole until serving at least 85% of the sentence.
Mazzone, through her new counsel, Robert Pierce, asked Presiding Judge Bernard E. DeLury Jr. to grant her petition for post-conviction relief or, at the very least, order an evidentiary hearing to get more facts on the matter, during an appearance in Cape May County Superior Court Oct. 28, 2022.
In a written decision issued months later, .DeLury denied the request for the evidentiary hearing and the petition for post-conviction relief.
The Original Case
Eric Nolan was found by his father, the sheriff, unconscious in his bed in North Cape May on July 21, 2018, with a rolled up $20 bill, a blue powdery substance and two blue tablets marked M 30 on his end table, according to the statement of facts included with the judge’s decision.
After Eric Nolan was declared dead, investigators interviewed his father, Robert Nolan, who told them he was eating dinner with his son earlier that evening when Eric Nolan left the table to meet the occupant of an SUV which pulled into the driveway, according to records. When his son returned, Eric Nolan told his father it was Lauren Dorff in the vehicle and he was giving her money for the child they shared, according to what the sheriff told investigators.
Later that night, Eric Nolan died from a drug overdose, according to the medical examiner.
The pills on Nolan’s nightstand were analyzed and found to be counterfeits, containing a combination of fentanyl and Tylenol, not oxycodone as the markings on the pills indicated.
Eventually, a confidential police informant, accompanied by Dorff, conducted a controlled buy of Percocet (a brand name for oxycodone) from Mazzone, under the supervision of the Cape May County Prosecutor’s Office.
Those pills tested positive for fentanyl, according to court documents. Through information from informants and forensic evidence from cell phone records, investigators determined it was Mazzone who supplied Dorff with the fatal drugs she gave Nolan. Dorff was a codefendant of Mazzone.
Investigators obtained and executed a search warrant on Mazzone’s house Aug. 10, 2018 and arrested Mazzone and her boyfriend, who was home with her at the time of the early morning search.
Mazzone’s Argument for Relief
As part of her petition for post-conviction relief, asking the court to order her a new trial, Mazzone argued she was deprived of her constitutional right to reasonably competent counsel by her trial lawyer, Matthew Leonard. Had she had effective counsel, she would have taken the case to trial and not pleaded guilty, she argued.
Mazzone alleged in court that she heard her trial counsel was under investigation for allegedly sneaking drugs into the Atlantic County jail, but he never disclosed that to her. She claimed that investigation impacted their ability to meet face-to-face to review her case.
Mazzone alleged Leonard failed to review key discovery with her, failed to demand the autopsy report from the state, failed to challenge findings in the autopsy report and failed to file other essential pretrial motions with the court.
She further argued the state committed a Brady violation by failing to disclose exculpatory evidence to the defense prior to Mazzone entering her guilty plea. Under a legal doctrine derived from Brady v. Maryland, a landmark U.S. Supreme Court case, prosecutors must share exculpatory evidence with defendants in discovery. Mazzone argues that two separate toxicology reports would have proven that Eric Nolan did not die from a fentanyl overdose.
Mazzone argued those toxicology reports were not provided by prosecutors and she was therefore not in possession of irrefutable evidence the victim did not die from a fentanyl overdose because the fentanyl levels in the toxicology report were far too low to have killed Eric Nolan, a defense expert retained post-conviction would have testified at trial.
She also claimed the autopsy report and the toxicology reports were not completed until after her case was presented to the grand jury, based on the date on the medical examiner’s report.
The State’s Response
The state, led in the post-conviction stage by Senior Assistant Prosecutor Gretchen Pickering, argued that Leonard was not constitutionally ineffective in representing Mazzone.
The burden to find trial counsel ineffective must be proven in two prongs, known as the Strickland test. The petitioner must prove not only that the defense attorney was deficient, but also that a reasonable probability exists that another competent attorney would have gotten a different outcome in the case. Under Strickland, the court gives great deference that counsel’s conduct fell into the wide range of reasonableness. The petitioner must prove both the performance and prejudice prongs for trial counsel to be rendered constitutionally ineffective.
The state argued that Leonard’s trial strategy was to cooperate with authorities before Mazzone’s codefendants did and that by doing so she would be treated favorably at sentencing. Under the state’s defense theory, Mazzone knew had she waited to cooperate until other codefendants were already talking, it would be too late and her cooperation would not have any value to prosecutors, who would then have no reason to recommend leniency at sentencing.
The state argued further factoring into the defense strategy to take the deal was the fact that the state had overwhelming evidence against Mazzone in the case and she faced an exposure of 20 years in prison if convicted at trial, subject to NERA. Hindsight or buyer’s remorse are not enough to meet the standard required for Mazzone to get a new trial, prosecutors argued.
The state had certifications from Senior Assistant Prosecutor Edward Shim, the trial prosecutor, who remembered he had been discussing a plea with defense counsel since Mazzone’s detention. Shim certified he hand delivered the autopsy report, including the attached toxicology reports, to Leonard prior to Mazzone’s guilty plea.
Shim also certified that a hearing where Mazzone was expected to enter a guilty plea was postponed at the defense’s request so counsel could have more time to review documents and address the defendant’s questions. The state argued Mazzone knowingly and voluntarily and entered her guilty plea and she was not entitled to withdraw it and did have effective counsel.
Addressing the Brady violation accusation, the state argued based on the certification from Shim, there was no Brady violation because the defense was hand delivered the autopsy report, including the allegedly exculpatory toxicology reports, prior to the plea hearing.
Dr. Ian Hood, the medical examiner, found that the levels of fentanyl did cause Eric Nolan’s death. The state said the defense expert who the petitioner would present to testify to the opposite is a well-known defense expert whose findings were not subject to cross examination at trial.
The state argued Mazzone failed to prove either prong of the Strickland test and should not be granted an evidentiary hearing. The state also said Mazzone got a lot of her facts wrong and relied on speculation, unable to back up many of her claims, since her file was allegedly destroyed in a flood at trial counsel’s offices.
The Judge’s Opinion
In his analysis of the petition, issued by letter dated Jan. 30, DeLury found Mazzone did not qualify for post-conviction relief or for an evidentiary hearing. DeLury said he found the certifications of prosecutors and the pathologist more compelling than Mazzone’s allegations.
“On balance, the certifications provided by the State from the prosecutors and pathologist involved have far greater weight than the bold, contrived and convoluted assertions of the Petitioner,” DeLury wrote.
First, dealing with the Strickland test, DeLury laid the groundwork for its use in a case where the defendant pled guilty.
In the context of a guilty plea, “the Court must consider whether: (1) counsel’s assistance was not within the range of competence demanded of attorneys in criminal cases; and (2) whether there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial,” according to the judge’s analysis (emphasis in original).
In this case, DeLury found Mazzone did have Constitutionally effective counsel.
“It is evident that trial counsel obtained discovery, met with his client, engaged in plea negotiations, and explored all reasonable avenues to represent his client. Trial counsel, in an exercise of prudent and measured strategic analysis of the case, advised his client to pursue an avenue of early cooperation,” DeLury wrote.
Mazzone’s position that Leonard, her trial counsel, failed to effectively investigate the case also failed with the Court. The judge found Mazzone “offered nothing beyond bold and unsupported assertions” to show how Leonard was ineffective in his investigation. Even if she had, the argument would have failed in the prejudice prong DeLury opined.
DeLury said Leonard’s strategy appeared to be successful. He was able to negotiate an eight-year deal, which was further reduced to seven-years at sentencing for her continued cooperation. A conviction at trial could have cost his client 20 years.
To get an evidentiary hearing, Mazzone had the burden of demonstrating a reasonable likelihood her case would eventually succeed on the merits.
“Ultimately, [Mazzone’s] argument relies on her uncorroborated and conclusory assertions that trial counsel’s ongoing professional and personal matters prevented him from communicating with her adequately. However, the State offered sufficient evidence to show that trial counsel was not hindered in his representation,” wrote DeLury.
He found an evidentiary hearing would be unnecessary because there is no evidence outside of the existing record that would be beneficial to the court to determine if Leonard was deficient.
To reach Shay Roddy email sroddy@cmcherald.com or call (609) 886-8600 ext. 142.
