On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Ind. No. 99-06-0335.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 26, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant Keith Descoteau appeals from the August 4, 2006 order denying his petition for post-conviction relief (PCR), in which he alleged ineffective assistance of trial and appellate counsel and sentencing errors. We affirm.
Following a jury trial, defendant was acquitted of purposeful murder, knowing murder, and felony murder, but was convicted of the lesser-included offense of second-degree reckless manslaughter. He was also convicted of third-degree possession of a weapon for an unlawful purpose and acquitted of fourth-degree unlawful possession of a weapon. The evidence presented was that defendant convinced two friends, Christopher Flynn and Anthony Leahey, to stab his wife's boyfriend, and offered them the use of his own knives to commit the crime. After the murder, the two met with defendant and he thanked them for killing the victim, and helped them clean the flesh and blood off the knives and get rid of the evidence. Both Flynn and Leahey waived their Miranda*fn1 rights and gave confessions implicating defendant. They thereafter pled guilty to their indictments and were each sentenced to thirty-years imprisonment without parole, and testified against defendant at trial. Defendant also confessed, admitting his anger at the victim for having an affair with his wife, that he approached Flynn and Lehey, and that he provided them with the knives.
On December 15, 2000, the trial judge sentenced defendant to an nine-year custodial term for reckless manslaughter with an 85% term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term on the weapons conviction. We affirmed defendant's conviction on appeal. State v. Descoteau, No. A-2907-00T4 (App. Div. June 11, 2002). The Supreme Court denied defendant's petition for certification on September 25, 2002. State v. Descoteau, 174 N.J. 366 (2002).
This PCR petition ensued and was denied by Judge Paul Armstrong on July 27, 2006 following oral argument but without an evidentiary hearing. In his PCR petition, defendant argued ineffective assistance of counsel due to trial counsel's failure to object during trial and then appellate counsel's failure to raise as plain error the trial court's incomplete jury instruction after the jury sought to be recharged on the elements of reckless manslaughter. Defendant also claimed Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 59 L.Ed. 2d 403 (2004), mandated vacation of the above-the-presumptive term for reckless manslaughter. Finally, defendant claimed a NERA hearing was required prior to the imposition of his sentence on his reckless manslaughter conviction because as a result of the deficient accomplice liability charge the sentencing court could not with certainty ascertain whether or not the jury had found that defendant had committed a "violent crime," making him eligible for a NERA term.*fn2
Defendant's claims were rejected by the trial court. Judge Armstrong found defendant failed to present any evidence that trial counsel's decision not to object to the court's response to the jury question regarding reckless manslaughter was anything other than trial strategy. Regardless, even accepting defendant's argument that his counsel was deficient, defendant "failed to demonstrate any likelihood that a more favorable result would have inured to the defendant with adequate counsel," particularly since trial counsel obtained a not-guilty verdict on the most serious charge of first-degree murder. The court further found defendant was not entitled to be resentenced pursuant to State v. Natale, 184 N.J. 458, 494 (2005), as his case was resolved through direct appeal three years prior to that decision and he had not raised Blakely claims at trial or on direct appeal, and thus was not entitled to "pipeline" retroactivity. Moreover, the PCR judge noted that the sentencing judge found aggravating factors three, six and nine and mitigating factor twelve, N.J.S.A. 2C:44-1, and arrived at the sentence after weighing those factors and considering the statutory range for a second-degree offense without consideration of the former presumptive term. The court also found application of NERA was proper where defendant's actions resulted in the brutal stabbing death of the victim, a "violent crime," and where the jury found, beyond a reasonable doubt, that defendant committed the crime of reckless manslaughter, to which NERA applies. See State v. Newman, 325 N.J. Super. 556, 561 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000); State v. Ferencsik, 326 N.J. Super. 228 (App. Div. 1999).
Defendant raises the same issues on appeal. We consider defendant's claims in light of well-settled principles. The standard for determining whether counsel's performance was ineffective for purpose of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed. 2d at 693, 698.
Based on our review of the record, we are satisfied that defendant has failed to demonstrate that trial or appellate counsel's performance was deficient under the Strickland/Fritz standard. The jury's penultimate question during deliberations requested a clarification of the definition of reckless manslaughter and if knowledge and purpose applied to the definition. The judge responded "no." Defendant acknowledges the response was accurate, and that the jury had already been instructed numerous times that in order to find defendant guilty as an accomplice it had to find he acted with a purpose to promote the underlying offenses and he possessed the same criminal state of mind as the principals. Defendant argues, however, that the judge's response, to which trial counsel failed to object, and appellate counsel failed to assert as plain error, led to an uncoupling of "the requirement of intent to promote or facilitate from the reckless state of mind necessary for manslaughter," which diminished the State's burden of proof at the final point in the trial, and deprived defendant of effective assistance of counsel and a fair trial. We disagree. The manner in which the trial court responded to the jury's question was proper, and considering the charge as a whole, we perceive trial counsel's decision not to object, and appellate counsel's decision not to raise the issue, to be an informed one and not the result of deficient performance. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 689 (recognizing that in our analysis of attorney performance, we must indulge a strong presumption that counsel made all significant decisions in the exercise of his or her reasonable professional judgment and sound trial strategy).
Furthermore, as noted by the PCR judge, in view of the overwhelming evidence of defendant's guilt, including his confession and the testimony of his two co-defendants that was consistent with defendant as to his involvement in the crime, any deficiencies in the representation by counsel did not prejudice defendant to the extent that it affected the ultimate outcome. Thus, defendant is also unable to satisfy the second prong of Strickland.
Defendant's arguments regarding his sentence are without sufficient merit to warrant further discussion in this opinion, and we affirm substantially for the reasons ...