On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 98-08-0971.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C. L. Miniman.
Defendant appeals from the denial of his petition for post conviction relief (PCR).
Defendant pled guilty to two counts of attempted murder of his parents, embodied in one indictment, and a charge of theft, embodied in another, in exchange for a negotiated maximum sentence of fifteen years with the No Early Release Act (NERA) to apply for the attempted murders and a concurrent sentence for the theft. We affirmed the negotiated concurrent sentences on defendant's direct appeal.*fn1 Certification was denied.
The petition for PCR related to defense counsel's failure to submit a psychological report at sentencing. The PCR judge found that failure constituted deficient performance but did not satisfy the second prong of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). The judge saw nothing in the report sufficient to warrant a mitigating factor which would have affected the sentence.
Counsel had argued at sentencing that the defendant suffered from a "psychiatric disability" and had a "total psychotic breakdown" at the time of the attack. Defendant now argues the psychological report was not timely presented, and that the sentencing judge therefore overlooked the factors noted in the report or "placed too little weight on the factors enumerated" therein. Defendant asks for a remand for resentencing.
Dr. Edward J. Dougherty concluded that, while "there is a favorable prognosis that this man will be able to deal with his emotional needs as well as remain drug-free," "there is no clear evidence of any type of serious neurological problem which interfered with his ability to reason." We cannot say that anything presented on the PCR, or to us, suggests that a lower sentence would have been imposed, or that timely presentation of the report would have resulted in a sentence lower than the negotiated disposition (the former "presumptive"). See N.J.S.A. 2C:44-1f(1).
We affirm the judgment substantially for the reasons expressed in Judge James M. Citta's oral ...