May 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL WINSTEAD, N/K/A KWASI SEKOU MUHAMMED, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-01-0315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Coburn and Fuentes.
Defendant appeals from an order of March 2, 2007, denying his petition for post-conviction relief. We affirm.
Defendant was tried on a twelve-count indictment charging him with related offenses that occurred on August 29, 2000, and February 7, 2001. The jury acquitted defendant on the five counts of the indictment related to the first incident but found him guilty on all but one of the counts related to the second incident. Thus, he was convicted on two counts of second degree aggravated assault, related weapons offenses, and resisting arrest. The victims of the aggravated assaults were Ikema Mitchell and Aaron Williams, both of whom defendant shot with a hand gun.
The victims and other individuals clearly testified that defendant brought a gun to the scene and used it to shoot his victims. Defendant did not testify that he shot anyone or that he shot them in self-defense. Rather, he claimed he was attacked and heard someone else shooting. Defendant received a sentence of imprisonment for ten years with application of the No Early Release Act, consecutive to a sentence he was then serving. He appealed and we affirmed. State v. Winstead, No. A-1987-02 (App. Div. Oct. 7, 2004), certif. denied, 182 N.J. 428 (2005).
On appeal from the denial of his petition for post- conviction relief, defendant offers the following arguments:
THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT BY FAILING TO CHARGE THE JURY ON THE LEGAL JUSTIFICATION OF SELF DEFENSE. (Partially raised below).
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV.; N.J. CONST. ART. I, PAR. 10.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In his pro se brief, he offers this argument:
THE EXTENDED PERIOD OF NERA PAROLE SUPERVISION IS UNCONSTITUTIONAL UNDER APPRENDI v. NEW JERSEY AND BLAKELY v. WASHINGTON, CONFLICTING WITH THE FIFTH AND SIXTH AMENDMENTS OF THE CONSTITUTION BECAUSE IT EXCEEDS THE STATUTORY MAXIMUM OF DEFENDANTS 10 YEAR SENTENCE. (Partially Raised Below).
After carefully considering the record and briefs, we are satisfied that all of the defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add these comments. The self-defense claim should have been raised in the direct appeal and is therefore barred at this time. R. 3:22-4; State v. Mitchell, 126 N.J. 565, 583-89 (1992). In any case, a defendant is not entitled to a self-defense charge unless there is evidence to support the claim of self-defense. State v. Rivers, 252 N.J. Super. 142, 148-49 (App. Div. 1991). Here, defendant testified that someone else shot the victims while he was being attacked; that is simply not a claim of having acted in self-defense. Of course, it follows that defendant's attorney did not provide ineffective assistance of counsel in failing to request a charge, which, had it been requested, would have been denied.
Given defendant's record, and the judge's precise findings on the grounds for the sentence, there is no basis for reversing the sentence.
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