July 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANATOLIY SHASHKOV, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-02-0233.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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., Amend. IV, XIV; N.J. CONST. (1947), Art. I, par. 10).
DEFENSE COUNSEL'S FAILURE TO FILE AN APPEAL FROM DEFENDANT'S RE-SENTENCING DEPRIVED DEFENDANT OF THE RIGHT TO JUDICIAL REVIEW OF HIS SENTENCE AND CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING TO PRESENT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
Having considered defendant's arguments in light of the record and applicable precedent, we affirm.
Defendant's arguments in this matter are premised on allegations of the ineffective assistance of counsel. Whether such is the case is governed by the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). In accordance with those decisions, relief can be afforded only if defendant demonstrates, first, that counsel's performance "fell below an objective standard of reasonableness" and, second, that counsel's deficient performance actually prejudiced the defense. Ibid.
We do not regard counsel's performance at the sentencing hearing to warrant relief under the Strickland/Fritz standard. The trial judge, for well-articulated reasons, rejected the mitigating factors proffered by defense counsel with the exception of defendant's lack of a prior record, and the judge stated at the PCR hearing that a fuller exposition of those factors and their applicability to defendant would not have altered his decision to impose the maximum sentence of ten years upon defendant. Accordingly, even if the first prong of the Strickland/Fritz test were met (a matter that we leave unresolved), the second prong clearly has not been demonstrated.
Had counsel performed better, the result would not have differed.
Defendant next argues that counsel was deficient in failing to appeal the re-sentence. However, there is nothing in the record to suggest that defendant sought such an appeal. Moreover, because the sentence imposed was within the judge's sentencing discretion and was neither excessive nor unduly punitive, State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984), such an appeal would have been futile. As a result, Strickland's second prong is again unmet.
As a final matter, defendant claims that an evidentiary hearing should have been conducted in connection with his PCR petition to compensate for "the obstacles faced by defendant in seeking to fully and accurately communicate his grievances regarding the conduct of the trial and performance of his trial counsel" arising from his unfamiliarity with English. However, the record reflects that a Russian interpreter was present at all stages of the proceedings involving defendant, including his trial, sentencing, re-sentencing, and the PCR hearing. We thus do not see that defendant was at any point deprived of his communicative ability. Moreover, defendant has offered on appeal no grievance that was not properly considered previously.
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