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State of New Jersey v. Kimberly Mitchell

November 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIMBERLY MITCHELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0183.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2011

Before Judges Carchman and Baxter.

Defendant Kimberly Mitchell entered a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and was sentenced, consistent with the plea agreement, to imprisonment for fifteen years, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act.

N.J.S.A. 2C:43-7.2. In accordance with the plea agreement, the judge dismissed three counts of second-degree aggravated arson as well as one count of first-degree felony murder. Defendant appealed her sentence, and we affirmed. Defendant, thereafter, filed a Petition for Post-Conviction Relief (PCR),*fn1 which was denied without a plenary hearing. Defendant appeals, and we affirm.

The facts are simply stated. In August 2003, following an altercation with a third person while at 639 Sixth Avenue, Plainfield, defendant returned to the premises and started to destroy the person's bedroom. Defendant then started a fire in a clothes hamper, resulting in the death of a resident of the apartment. Defendant was subsequently charged with the previously noted offenses and consistent with a negotiated plea agreement, entered a plea of guilty to the charge of aggravated manslaughter.

When she entered the plea, defendant indicated that she had consumed a controlled dangerous substance, PCP, before the incident. During her voir dire at the plea, she admitted that she set the fire, knew that the victim was in the building and that the fire could spread. She indicated that, at the time of the incident, "she did not care."

The Presentence Report, submitted to the State, defendant and the judge, stated that:

At the time of this Presentence report [defendant] informed this writer that she was in good physical health. [Defendant] also indicated that she has been receiving psychiatric treatment at various institutions, including Elizabeth General Hospital, UMDNJ, and Mulenburg [sic]

Hospital. It should also be noted that defendant informed this writer that she has a history of substance abuse, which included the use of alcohol, marijuana and phencyclidine. In fact [defendant] informed this writer that she was under the influence of phencyclidine when she committed the instant offense.

Prior to sentencing, defendant had previously provided the State with a report authored by Kenneth L. McNiel, Ph.D., whom defendant retained to perform a psychological examination of her. That examination concluded, among other things, that defendant suffered from bipolar disorder as well as substance abuse. At sentencing, counsel made brief reference to defendant's psychiatric history. The judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), and nine, N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law), as well as mitigating factor four, N.J.S.A. 2C:44-1b(4) (there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense), and he concluded that the aggravating factors outweighed the mitigating factors. He then imposed the agreed upon sentence at issue here.

In her PCR, defendant raised the following issues:

I. TRIAL COUNSEL WAS INEFFECTIVE WHEN SHE FAILED TO PRESENT THE TRIAL COURT, PROSECUTOR, AND UNION COUNTY PROBATION DEPARTMENT WITH DOCUMENTATION REGARDING ...


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