On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged in Indictment 00-02-0272 with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; and first- degree murder, N.J.S.A. 2C:11-3a(1),(2). His co-defendant was his girlfriend, Diane Sieminiski, and the victim was Ms. Sieminiski's mother. He entered a negotiated plea of guilty to one count of aggravated manslaughter and was sentenced to seventeen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
Defendant was also charged in Accusation 753-6-00 with obstruction of justice, N.J.S.A. 2C:29-1(a); hindering apprehension, N.J.S.A. 2C:29-3(b)(3)(4); and theft by deception, N.J.S.A. 2C:20-4. Thereafter, he waived his right to indictment and entered a negotiated plea of guilty to these charges. At sentencing, the trial court merged the conviction for obstruction of justice into the conviction for hindering apprehension; it then sentenced defendant to two concurrent three-year terms for the remaining convictions, to be served concurrently with the sentence imposed for aggravated manslaughter.
In his plea colloquy, defendant set forth how he and his co-defendant resided in her mother's home. He and the victim had a fierce argument, and he picked up a hammer and struck her in the head, killing her. His plea colloquy did not include the events immediately following this blow, during which he then tied her up, wrapped her body in large plastic bags and placed it in the cellar, where it remained for months. He did admit that following her death, he and his girlfriend negotiated the victim's Social Security checks that arrived monthly.
As part of the plea bargain, the prosecution agreed to recommend that defendant be sentenced to twenty years in prison subject to NERA. The trial court, however, indicated to defendant that its sentence would most likely be seventeen years in prison, subject to NERA. That, as we have noted, was the sentence finally imposed by the trial court.
Defendant appealed, contending that his sentence was excessive. His appeal was heard under Rule 2:9-11, and his sentence was affirmed. State v. Sinnhoff, No. A-4789-00 (App. Div. Feb. 6, 2002).
Defendant filed a second appeal, contending he should not have been subject to the terms of NERA. We rejected that argument and affirmed. State v. Sinnhoff, No. 3932-01 (App. Div. Nov. 12, 2004).
Defendant thereafter filed a petition for post-conviction relief, contending that he had received ineffective assistance from the attorney who had represented him on the trial level. Specifically, he contended that his trial attorney had failed to investigate defendant's prior psychological history and his emotional state in order to construct an argument for a lesser sentence. He submitted a report from Edward J. Dougherty, Ed.D., who stated that he found "no evidence in the medical records... that [defendant] suffered from mental health problems to such an extent that they may have been explored for use as a possible insanity or diminished capacity defense." Dr. Dougherty also noted that defendant had been diagnosed with Impulse Control Disorder and Personality Disorder (NOS), and that should have been explored as an avenue at sentence in aid of mitigation.
The trial court, after hearing oral argument on defendant's petition, rejected it. It is significant that the court was very familiar with this matter, having taken defendant's plea and having sentenced defendant to a term three years less than what the State was seeking. In rejecting defendant's petition, the trial court stated:
I am well satisfied that even if the information that Mr. Sinnhoff wishes to present to me now were available to me, even if I were to ...