October 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESSIE VESSELS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 96-07-2388.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Collester and C.S. Fisher.
In 1996, defendant was charged in Indictment No. 96-07-2388 with having committed two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and other offenses, regarding the shooting deaths of Keir Thomas and Henry Wynn. On the date set for the commencement of trial, defendant pled guilty to two amended counts of first-degree aggravated manslaughter. On April 1, 1998, defendant was sentenced to two consecutive twenty-year terms, each with a nine-year period of parole ineligibility.*fn1 He filed a notice of appeal, which was later withdrawn.
On August 11, 2005, defendant filed a pro se petition for post-conviction relief (PCR). Assigned counsel later filed a supplemental PCR petition.
The trial judge denied relief and defendant appealed. In his appeal, defendant presents the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S PETITION FOR POST CONVICTION RELIEF BECAUSE DEFENDANT-APPELLANT MADE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THERE WAS ERROR IN APPLICATION OF THE AGGRAVATING AND MITIGATING FACTORS, AS WELL AS THE YARBOUGH*fn2 ANALYSIS.
A. THE TRIAL COURT ERRED DURING SENTENCING WHEN IT FOUND AGGRAVATING FACTORS 1 AND 8 AND DEFENDANT-APPELLANT'S COUNSEL FAILED TO OBJECT.
B. DEFENDANT-APPELLANT'S COUNSEL FAILED TO PRESENT ANY MITIGATING FACTORS WHEN MITIGATING FACTORS 4 AND 5 ARGUABLY APPLIED.
C. THE TRIAL COURT ERRED IN FINDING THAT THE TWO SENTENCES FOR MANSLAUGHTER SHOULD RUN CONSECUTIVELY, BECAUSE THE CRIMES WERE PART OF ONE OCCURRENCE.
II. DEFENDANT-[APPELLANT]'S COUNSEL'S FAILURE TO OBJECT TO THE FINDING OF IMPROPER AGGRAVATING FACTORS AND FAILURE TO RECOGNIZE VALID MITIGATING FACTORS, AS WELL AS HIS FAILURE TO OBJECT TO THE CONSECUTIVE SENTENCES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. DEFENDANT-APPELLANT PRESENTED ADDITIONAL GROUNDS FOR POST-CONVICTION RELIEF WHICH WERE IMPROPERLY REJECTED BY THE PCR JUDGE.
We find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
In a thorough oral decision, the trial judge described the reasons for his determination that the PCR petition, which was filed more than seven years after the entry of judgment, was time-barred by R. 3:22-12. The judge also concluded, after reviewing the merits of defendant's contentions, that there was no basis for relaxing the rule-based time-bar.
In explaining why the time-bar should not have been relaxed, the judge comprehensively examined the sentencing proceedings and defendant's claim that he was deprived of the effective assistance of counsel. The judge determined that he did err in applying the aggravating factor contained in N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"), and that defendant's counsel should have objected at the time of sentencing. However, as the judge further explained, this mistake made no difference in the sentence imposed because the aggravating factors, which were appropriately found and considered, substantially outweighed the mitigating factors, of which none were found.
Defendant also argued to the judge that he should have found and applied the mitigating factors contained in N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct . . .") and N.J.S.A. 2C:44-1(b)(5) ("[t]he victim of the defendant's conduct induced or facilitated its commission"), and that his trial counsel failed to make this argument during sentencing. The judge concluded that, even if he had found those factors applicable, it would have made no difference in the sentence imposed because, "[a]t best, the aggravating and mitigating factors would be balanced," and the sentencing laws at the time would have required the imposition of the presumptive terms for the two offenses, which is precisely what defendant received.
For these reasons, as well as the other reasons set forth in his oral decision, the judge correctly found that, even if errors were made by defendant's trial counsel, they had no bearing on the results of the sentencing proceedings, and, thus, defendant's untimely PCR petition failed to satisfy the second prong of the standard set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) (a successful claim of ineffective assistance of counsel requires a showing that it is "reasonabl[y] probab[le] that, but for counsel's unprofessional errors, the result of the proceeding would have been different").