On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-03-0487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
Defendant Thomas Simms appeals from the November 13, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
On October 19, 2000, defendant, anticipating a fight, shot Anthony Parrish behind his left ear, with the bullet exiting through his right eye; shot Marcus Bailey and Timothy Parrish in the face; and shot Amin Suluki in the buttocks as Suluki was attempting to run away. Following his capture, defendant admitted to the police that he shot all four victims.
On March 21, 2001, defendant was charged, along with three co-defendants, with four counts of attempted murder (counts one, two, three and four), and with numerous other charges, including multiple counts of second, third, and fourth-degree aggravated assault and weapon offenses.
A jury convicted defendant of most of the charges, including counts two and four. On counts one and three, the jury convicted defendant of the lesser-included offense of second-degree attempted passion/provocation manslaughter. The jury also convicted defendant of second-degree possession of a firearm for an unlawful purpose, and third-degree unlawful possession of a firearm.
On count two, the trial judge sentenced defendant to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), and to a five-year term of parole supervision upon release. The judge imposed an identical consecutive sentence on count four. The judge merged the conviction for third-degree unlawful possession of a weapon with the conviction for second-degree possession of a weapon for an unlawful purpose. The judge either merged or imposed concurrent sentences on the remaining convictions. Accordingly, defendant received an aggregate sentence of forty years subject to NERA.
Defendant appealed, and the State cross-appealed. On appeal, defendant argued, in part, that the judge improperly instructed the jury on passion/provocation manslaughter, and should have merged the conviction for possession of a weapon for an unlawful purpose with the conviction for attempted passion/provocation on counts one or three. Defendant also challenged the judge's imposition of a consecutive sentence on the two convictions for attempted murder. On cross-appeal, the State argued that the judge erred in merging the conviction for second-degree possession of a firearm for an unlawful purpose with the conviction for third-degree unlawful possession of a firearm.
We affirmed the convictions and imposition of consecutive sentences but vacated the sentences and remanded for re-sentencing pursuant to our decision in State v. Natale, 373 N.J. Super. 226 (App. Div. 2004). State v. Simms, No. A-1781-02 (App. Div. February 18, 2005) (slip op. at 36). On the cross- appeal, we directed the trial judge to merge defendant's conviction for possession of a firearm for an unlawful purpose with one of the substantive convictions for attempted murder or attempted passion/provocation manslaughter. Ibid. We also held that the conviction for third-degree unlawful possession of a firearm could not be merged. Id. at 36-37.
The State filed a petition for certification, and defendant filed a cross-petition. Our Supreme Court granted the State's petition but summarily remanded the matter for re-sentencing in accordance with its decision in State v. Natale, 184 N.J. 458 (2005). State v. Simms, 185 N.J. 260, (2005). The Court denied defendant's cross-petition. State v. Simms, 185 N.J. 267 (2005). On November 29, 2005, the trial judge re-sentenced defendant pursuant to Natale and imposed the same sentence as originally imposed. On February 6, 2007, we affirmed the sentences on the excessive sentencing oral argument calendar.
On April 20, 2007, defendant filed a pro se PCR petition, arguing that: (1) the trial judge erred in providing jury instructions on passion/provocation manslaughter; (2) trial counsel was ineffective in failing to challenge the jury instructions, conduct proper pre-trial investigation, and argue mitigating sentencing factors; (3) appellate counsel was ineffective in failing to raise all arguments he requested and failing to move for reconsideration of our opinion before the matter was submitted to the Supreme Court on certification; and (4) the sentence was excessive.
On November 13, 2008, Judge Kreizman entered an order supported by an oral opinion denying defendant's PCR petition without an evidentiary hearing. The judge addressed each issue raised and either rejected them on procedural grounds, because they could or should have been addressed on direct appeal, or found that they lacked merit ...