On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-11-2158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Defendant, Christopher McCray, appeals from the denial of his petition for post-conviction relief (PCR). Defendant is serving a twenty-year sentence subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), and related offenses. Pursuant to a plea agreement, the murder charge was amended to aggravated manslaughter, and in exchange for defendant's plea to that downgraded charge, the State agreed to dismiss all other counts of the indictment and recommend a sentence not exceeding twenty years imprisonment subject to an 85% NERA parole disqualifier. Additionally, the sentence would be served concurrent with a sentence defendant was then serving.
After defendant entered his guilty plea, Judge Callahan imposed the sentence recommended in the plea agreement. Defendant appealed. Because his appeal pertained only to his sentence, it was assigned to our excessive sentencing calendar. See R. 2:9-11. After hearing oral argument, we entered an order on December 14, 2005 rejecting appellant's argument that his sentence was excessive, and we affirmed the sentence. State v. McCray, No. A-2140-02T4 (App. Div. December 14, 2005). On February 23, 2006, the Supreme Court denied defendant's petition for certification. State v. McCray, 186 N.J. 258 (2006).
Defendant then filed his PCR petition. He argued that his plea counsel was ineffective for failing to obtain a psychological evaluation and assert a diminished capacity defense. Importantly, defendant did not claim he was innocent and did not seek to withdraw his plea of guilty to aggravated manslaughter. He sought only a reduced sentence. In support of his petition, he produced a psychological report, resulting from an evaluation conducted on December 5, 2006. The evaluator opined that when defendant committed the homicide, he suffered from post-traumatic stress disorder and he "was functioning within a context of diminished mental capacity . . . ." Defendant argued that had his plea attorney obtained such an evaluation and report, he might have gotten a better plea bargain from the prosecutor or the judge might have found mitigating factors and imposed a lower sentence.
Judge Callahan rejected defendant's arguments, and, without granting an evidentiary hearing, denied defendant's PCR petition by order of June 29, 2007. The order was accompanied by a fourteen-page written opinion.
In the appellate brief filed by his attorney, defendant argues:
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHOLOGICAL ASSESSMENT OF DEFENDANT FOR POST-TRAUMATIC STRESS DISORDER AND DIMINISHED MENTAL CAPACITY (U.S. CONST., Amend. VI, XIV; N.J. CONST. (1947), Art. I, par.10).
A. Defendant Counsel's Failure to Obtain an Assessment of Defendant's Mental Status Was Not in Accord with Reasonable Professional Judgment.
B. Defendant Was Prejudiced By Defense's Counsel's ...