February 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARREN M. MCCHESNEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0771 and 06-09-0916.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Carchman and Graves.
Following the entry of a plea of guilty to third-degree burglary, N.J.S.A. 2C:18-2(a)*fn1 ; and second-degree burglary, N.J.S.A. 2C:18-2(a)(1), defendant Darren M. McChesney was sentenced to an aggregate term of imprisonment of seven years, subject to a period of parole ineligibility of 85% pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant did not appeal his sentence but thereafter, filed a petition for post-conviction relief (PCR). R. 3:22. The PCR was denied, and defendant appeals. We affirm but remand for the entry of a corrected judgment.
These are the relevant facts. On April 21, 2006, Vineland Police Officers investigated a residential burglary at the Fairview Manor Trailer Park. The victim, Cindy Bleda, reported that two containers full of loose change valued at $59.00 were taken from her home. The suspect forced entry through the rear door when no one was present in the home. The victim's nephew, defendant, was considered a suspect. On April 22, 2006, Ms. Bleda contacted the police department again because defendant had called her to apologize for the crime. Subsequently, defendant was arrested and taken to headquarters. Defendant admitted to the burglary. He claimed he had been drinking and smoking crack, and he needed money for additional crack.
On defendant's Pre-Sentence Report, defendant agreed with the events as detailed in the official version of the offense. He stated that the victim was his aunt, he took change from her home, and he was under the influence of cocaine and alcohol at the time.
Defendant was involved in another incident that became the subject of another indictment. On June 23, 2006, at 3:16 a.m., Millville Police Officers were detailed to investigate a stabbing. Upon arrival, the officers observed the victim, Lisa Smolar, covered with blood on her face, legs and chest. The officers observed a stab wound to the victim's chest, a cut to her face and a stab wound to her inner thigh. She was taken to the emergency room at the South Jersey Hospital System.
The officers spoke with the victim's husband, Stephen Smolar, who stated the incident started when he heard his step-daughter, Amanda Brownlow, yelling. Mr. Smolar came outside and observed defendant, who he had known for ten years, wrestling with Mrs. Smolar in the grass alongside their trailer home. When Mr. Smolar approached, defendant ran to the porch, grabbed a handful of clothes and fled.
Mrs. Smolar's two children, a three-year-old and an infant, were present during the crime. There were allegations that defendant picked up the three-month-old and threw her out the screen door of the trailer. Moreover, Amanda Brownlow reported that she was punched in the head by defendant, and she saw defendant pick up the infant and throw her out the door. When Ms. Brownlow went to rescue the infant, defendant attacked Mrs. Smolar. Ms. Brownlow and the infant were also taken to the hospital.
Officers on the scene located a black handled knife with a broken blade and covered with blood. Mrs. Smolar was interviewed at the hospital and added that after defendant threw the baby out of the trailer, defendant lunged on top of her, Mrs. Smolar, and began stabbing her repeatedly. She was treated at the Cooper Trauma Center and released.
During the investigation, the police found that an individual, later identified as defendant, placed a 911 call from a pay phone at the Eckerd Drug Store at Main and Wade Boulevard. The caller told the dispatcher that he was high on cocaine and that he had hurt somebody. Police arrived at the store and located and arrested defendant.
In the Pre-Sentence Report, defendant admitted going to the residence and stabbing the victim. He reported that he was under the influence of alcohol and ecstasy which he had not used before. He could not explain why he attacked the victim. He expressed no remorse for the attack or concern for the victim and denied throwing the baby out of the trailer.
On appeal, defendant raises the following issues:
POINT ONE THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
POINT TWO THE SENTENCE IS ILLEGALLY EXCESSIVE.
A. THE SENTENCE SHOULD HAVE BEEN BELOW WHAT WAS FORMERLY KNOWN AS THE PRESUMPTIVE.
B. COUNSEL FAILED TO POINT OUT, AND THE COURT FAILED TO CONSIDER, THE EFFECT OF NERA ON THE SENTENCE.
In denying defendant's PCR, Judge Geiger concluded that the sentencing judge did consider relevant mitigating factors. Judge Geiger reviewed each claimed mitigating factor in detail and determined that they were not relevant as asserted. More significantly, counsel, now claimed to be ineffective, had negotiated a favorable plea agreement on defendant's behalf belying the generalized claim of ineffective assistance of counsel.
Finally, the judge concluded that defendant had not met either prong of Strickand v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a conclusion that is well supported by the record before us.
We have carefully reviewed defendant's arguments and conclude that they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Geiger's thorough oral opinion of September 21, 2009.
In addition, we remand the matter for correction of the judgment of conviction.