On appeal from Superior Court of New Jersey, Law Division, Camden County, No. I-06-03-1162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm, although for reasons other than those given by the trial court.
On March 29, 2006, defendant entered a negotiated plea of guilty to a one-count accusation charging him with second-degree robbery, N.J.S.A. 2C:15-1. The prosecutor agreed to recommend that the trial court sentence defendant to five years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. On May 12, 2006, the trial court sentenced defendant in accordance with that recommendation.
In July 2007, defendant filed a PCR petition in which he alleged that the offense to which he had pled guilty was not subject to NERA. He also submitted a certification to the effect that he had a history of mental illness, including bipolar disorder. He said that he was not taking his medication at the time of the robbery and was not able to control his actions. He also stated that his attorney who represented him was aware of his mental health issues but did not have him evaluated by a psychiatrist, instead recommending that he plead guilty. He attached a record from Southern State Correctional Facility where he was then incarcerated which noted that he had been diagnosed with bipolar disorder and depression; it also noted, however, that he was in full remission.
PCR counsel submitted a brief on defendant's behalf, arguing that defendant's trial attorney provided ineffective assistance in not having a psychiatric evaluation conducted to determine the viability of possible defenses. PCR counsel also argued that trial counsel was ineffective in not arguing at sentencing for certain mitigating factors. The trial court denied PCR without holding an evidentiary hearing, and this appeal followed.
Defendant raises the following contentions on appeal.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN PLEA NEGOTIATION AND AT SENTENCING, RESULTING IN PREJUDICE TO DEFENDANT IN THE SEVERITY OF HIS SENTENCE. (U.S. CONST., Amend VI, XIV; N.J. CONST. (1947), Art. I, par. 10).
(a) Defense Counsel Was Ineffective in Failing to Obtain an Expert Psychiatric Assessment With Respect to Defendant's Mental Condition and the Effect of That Condition on Defendant's Actions.
(b) Defense Counsel Was Ineffective in Failing to Present and Argue Applicable Mitigating Factors at Sentencing That Would Have Warranted a Reduction in ...