On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-01-0195.
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010 - Decided
Before Judges Grall and C.L.Miniman.
Defendant Omar L. Shepperson appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction for first-degree aggravated manslaughter pursuant to a plea agreement for the shooting death of a twelve-year-old boy. We affirm.
Defendant was driving through a densely populated residential section of Pleasantville on September 4, 2005, while under the influence of a marijuana cigarette laced with PCP. He randomly fired a pistol out the window of his car, and killed twelve-year-old Quadir Swain, who was inside a house at the time. Defendant was apprehended and charged with the shooting.
On January 24, 2006, an Atlantic County grand jury indicted defendant for first-degree murder, contrary to N.J.S.A. 2C:11-3a(1), (2); first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b.
On May 11, 2007, defendant agreed to plead guilty to first-degree aggravated manslaughter in exchange for which the State would dismiss the remaining charges and recommend a sentence of twenty years subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant agreed to accept the sentence and, if he pursued a direct appeal, the State would have the right to withdraw from the plea agreement. In his plea allocution, defendant stated that he understood the terms of the plea and sentence and was pleading voluntarily, although he stated that he was on mood-stabilizing medication.
He also stated that he was high on alcohol and drugs when he shot the victim.
The judge reviewed the sentencing factors enumerated in N.J.S.A. 2C:44-1. He found that there were two aggravating factors pursuant to N.J.S.A. 2C:44-1a(3) and (9): a risk that defendant would commit another crime based on his extensive juvenile record and his history of adult arrests, and a need for general deterrence due to the increase in gun violence in Atlantic County. The judge found as a mitigating factor pursuant to N.J.S.A. 2C:44-1b(4) that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, in the form of defendant's mental illness. He sentenced defendant in accordance with the plea agreement- twenty years of confinement with eighty-five percent to be served without parole, five years mandatory parole supervision, statutory fines, and costs. The other three counts of the indictment were dismissed.
On August 10, 2007, defendant was sentenced, at which time the prosecutor recommended that defendant be sentenced in accordance with the plea agreement. Plea counsel stated that defendant's prior encounters with law enforcement occurred when he was a juvenile, and he had substantial mental-health issues as a schizophrenic. Plea counsel asked that defendant be sentenced in accordance with the negotiated plea. She urged that defendant was unlikely to be a recidivist. She also objected to the prosecutor's argument that an increase in shootings in the area should be considered in determining whether defendant's sentence should serve as general deterrence for similar crimes. She did not ask the judge to consider a lesser sentence.
On July 21, 2008, defendant filed a pro se PCR petition, stating that he had been diagnosed with schizophrenia; he was intoxicated at the time of the offense; his statement to the police was not admissible; he was not competent to waive his Miranda*fn1 rights; his sentence was illegal; his plea counsel was ineffective; and he was coerced to plead guilty.
The Public Defender filed a supplemental petition on his behalf on April 30, 2009. That petition asserted that defendant received ineffective assistance of counsel in that his attorney gave him misinformation and poor advice, failed to properly pursue his defenses, "failed to argue properly at sentencing, coerced him into accepting a plea, [and] allowed an inadequate factual basis to stand resulting in his conviction." The ...