On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1148.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Fuentes and Ashrafi.
Defendant Eddie Butler appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
On August 3, 2006, defendant pled guilty pursuant to a negotiated plea agreement to first degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1).*fn1 On May 3, 2003,*fn2 at approximately 3:30 a.m., defendant shot and killed a man named Kenneth Talley, Jr., in the City of Camden. Defendant and the victim were attending a party where alcohol was dispensed. According to the statement defendant gave at the plea hearing, while in the course of a verbal dispute with Talley, defendant raised his handgun and shot in the direction where Talley was standing. The bullet struck and killed the victim.
On September 22, 2006,*fn3 the court sentenced defendant to a term of eighteen years, with an eighty-five percent period of parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties. Defendant did not file a direct appeal challenging either the legal basis of the plea or the propriety of the sentence imposed by the court.
On August 6, 2007, defendant filed a pro se PCR petition contending that his trial counsel was ineffective because, according to defendant's reading of State v. Manzie, 168 N.J. 113 (2001), the court should not have applied NERA to the crime of aggravated manslaughter. Court-assigned counsel amended the PCR petition by abandoning defendant's original grounds based on Manzie and arguing that trial counsel was ineffective when he failed to investigate the defense of intoxication and self-defense as allegedly "requested" by defendant prior to entering his plea of guilty. In his certification in support of these claims, defendant stated:
I shot at the victim in this case because I believed he was reaching for a gun after he threatened me. Furthermore, I was under the influence of alcohol and my mental capacity was diminished.
I told my lawyer that based on this, I wanted to go to trial but may lawyer told me that pleading guilty was my best choice. I don't believe my lawyer conducted any investigation into my case or investigated my possible defenses.
In his brief before the court, PCR counsel also argued that trial counsel was ineffective when he failed to argue in favor of the court finding mitigating factor (3), that defendant acted under a strong provocation, N.J.S.A. 2C:44-1(b)(3); mitigating factor (4), that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); mitigating factor (5), that the victim's conduct induced or facilitated the commission of the crime, N.J.S.A. 2C:44-1(b)(5); mitigating factor (8), that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); mitigating factor (11), that defendant's imprisonment would entail excessive hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11); and mitigating factor (12), defendant's cooperation with law enforcement. On the other side of the analytic ledger, PCR counsel argued that trial counsel should have argued against the sentencing judge's "overvaluing" of aggravating factor (3), the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3).
Defendant's PCR petition came for adjudication on July 11, 2008, before Judge Thomas A. Brown, Jr., the same judge who reviewed and accepted defendant's guilty plea and thereafter sentenced him. After hearing the argument of counsel, Judge Brown found defendant's petition procedurally barred under Rule 3:22-3, which provides that a PCR petition is not "a substitute for appeal from conviction."
Despite this procedural impediment, Judge Brown addressed the merits of defendant's arguments. With respect to defendant's claims concerning trial counsel's failure to investigate an intoxication defense or self-defense, Judge Brown noted:
The court finds the petitioner's certification provides only speculation as to the investigative efforts of counsel at the time of the negotiated plea and sentencing. No evidence has been presented to suggest that counsel did not adequately investigate this matter. And no information has been provided to show what additional ...