On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-05-2165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Kestin and Newman.
Yvonne Smith Segars, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Defendant Darryl Townsend appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted in an eighteen-count indictment, which included two first-degree crimes of kidnapping (count one) and attempted murder (count eight). Defendant's crimes were directed at the mother of his child and occurred on three separate occasions, September 22, 2003, December 22, 2003, and January 9, 2004. Each of the offenses surrounding these dates led to escalating violence. On the first occasion, defendant abducted the mother. On the second occasion, he attacked her physically and choked her to the point where she almost lost consciousness. On the third occasion, defendant shot her twice, with the bullets striking her ear and shoulder.
Defendant's attorney negotiated a plea agreement wherein defendant would plead guilty to the kidnapping charge of count one, as amended to third-degree criminal restraint, to count five, also amended to third-degree aggravated assault, and to count nine, second-degree aggravated assault. The plea agreement called for a nine-year sentence with eighty-five percent of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and two concurrent sentences of four years each on the two third-degree charges.
At the time of sentencing, defendant's counsel expressly noted on the record that defendant had "a lot of mental health issues" and that this was "one of the reasons for how we resolved this case the way we did." The psychiatric examination of defendant, as well as a medical report involving his competency to stand trial, were all part of the record before the sentencing court. The sentencing judge sentenced defendant in accordance with the plea agreement.
Approximately four months after the sentencing, defendant filed a pro se motion for reconsideration of the sentence, claiming that his attorney was ineffective and that his sentence should be reduced to six years. He also noted his history of psychiatric hospitalization. In denying the motion because it was outside of the time limits, the sentencing judge restyled the matter as a petition for PCR and referred it for handling on that basis.
There were no affidavits or certifications submitted in support of the PCR petition. Defendant's PCR counsel argued that trial counsel should have brought out the mitigating factors, notably number four, that "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). PCR counsel argued that defendant should receive a reduced sentence of seven years imprisonment.
In rejecting the PCR petition, Judge John T. Kelley concluded that PCR relief was not available for defendant's challenge to the sentence, which could have been raised on direct appeal. Citing State v. Flores, 228 N.J. Super. 586 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), the court ruled that the excessiveness of the sentence must be addressed in a direct appeal. Here, there was nothing presented outside of the record to require consideration by way of post-conviction relief. Put another way, there was nothing raised in the PCR petition that could not have been presented on direct appeal.
The PCR judge went on to consider whether ineffective assistance of counsel at sentencing should result in PCR relief. In applying the two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted in State v. Fritz, 105 N.J. 42 (1987), he found that there was no showing that supported "a claim that there was ineffective assistance of [defense] counsel." According to the PCR judge, defendant's troubled history factored into the plea for dismissal of "two first-degree counts in the indictment." The court did not find that defense counsel was ineffective. Moreover, the PCR judge did not ascertain any prejudice by counsel's actions, since there was no reasonable probability that the result of the proceeding would have been different had further emphasis been given to defendant's mental history.
The PCR court also distinguished State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002), where a resentencing was ordered because there, defendant's counsel was barred from speaking at ...