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State v. Shashkov

July 28, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANATOLIY SHASHKOV, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-02-0233.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2009

Before Judges Stern and Payne.

Defendant, Analoliy Shashkov, a Russian native, was convicted, following a jury trial, of fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2) as a lesser-included offense to the purposeful murder, N.J.S.A. 2C:11-3a(1), charged in the indictment. Following merger of the weapons convictions into the manslaughter conviction, defendant was sentenced to ten years in custody, subject to an eighty-five percent period of parole ineligibility imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At sentencing, defense counsel urged the applicability of mitigating factors three (that defendant acted under strong provocation); four (there were substantial grounds tending to excuse his conduct, while not establishing a defense); five (the victim's conduct induced the offense); seven (lack of prior criminal history); eight (the conduct was unlikely to recur); and nine (defendant's character and attitude indicated that he was unlikely to commit another offense). See N.J.S.A. 2C:44-1(b). Counsel sought a five-year sentence. However, the judge rejected counsel's suggestions, finding only mitigating factor seven and observing that because the jury had found defendant guilty of passion/provocation manslaughter, he had already received whatever benefit in mitigation that he was entitled to obtain. The judge likewise rejected the suggestion that defendant's character and attitude indicated that his conduct would not recur, observing defendant's lack of remorse. As aggravating factors, the judge found one (the nature and circumstances of the offense, focusing in this case, on the manner in which the crime was committed) and nine (the need for deterrence, particularly of domestic violence). See N.J.S.A. 2C:44-1a. Finding that the aggravating factors vastly outweighed the mitigating ones, the judge imposed the maximum sentence upon defendant.

The record indicates that defendant stabbed his estranged wife in the abdomen and cut her throat twice after defendant returned to the wife's residence to retrieve possessions, and an argument ensued over the relative merits of defendant and the wife's current boyfriend. Defendant later called 9-1-1 and confessed to killing his wife. He also left a note, that in part expressed remorse, but ended with the statement that "[a] bitch gets a bitch's death."

Defendant appealed his conviction and sentence. In an opinion dated December 30, 2005, we affirmed defendant's conviction, but remanded the matter for resentencing in conformity with State v. Natale, 184 N.J. 458 (2005). State v. Shashkov, No. A-0036-04T4 (App. Div. December 30, 2005).

Defendant was resentenced, on February 24, 2006, to the same term that had previously been imposed, the judge having again found the maximum sentence to be warranted in the circumstances.

On January 29, 2007, defendant filed a pro se petition for post-conviction relief (PCR), which was amended following appointment of counsel. At oral argument on the petition, the PCR judge rejected PCR counsel's contention that defense counsel had been ineffective at the initial sentencing because he merely recited mitigating factors without relating those factors to defendant's conduct. In doing so, the PCR judge stated that a fuller articulation of the mitigating factors and their applicability would not have changed the outcome, in light of the heavy weight the judge accorded to aggravating factor one, the heinous nature of the stabbing, and aggravating factor nine, the need to deter acts of domestic violence. The judge additionally rejected counsel's arguments relating to alleged derogatory remarks by the prosecutor that portrayed defendant as speaking English better than he actually could; allegedly improper influence on the testimony of family witnesses; alleged suppression of evidence (defendant's taped statement) by the police; and the failure to call a witness named Oscar Castaneda, who assertedly would have corroborated defendant's version of events. While noting that the arguments should have been addressed on direct appeal, the judge nonetheless found that defendant's English-speaking abilities were essentially irrelevant to his conviction; that any bias on the part of family members did not affect the jury's verdict, since the jury accepted defendant's defense of passion/provocation; and that no other evidence could have been presented that would have served to challenge defendant's evident guilt. Post-conviction relief was thus denied, without an evidentiary hearing.

On appeal from the denial of post-conviction relief, defendant raises the following arguments for our consideration:

POINT I.

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS THAT DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT DEFENDANT'S SENTENCING. (U.S. CONST., ...


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