On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-11-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011 -
Before Judges Axelrad and Ostrer.
Defendant Michael Murphy appeals from an order entered April 1, 2009 by Judge James Den Uyl denying defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. He argues that he was denied effective assistance of counsel at sentencing.
Defendant was charged in a November 20, 2002 indictment with first-degree murder, N.J.S.A. 2C:11-3a(1), among other charges. As part of a plea agreement, defendant pled guilty on August 25, 2004 to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He admitted that on July 24, 2001, he placed a plastic bag over the head of his female victim, tied it with a cord around her neck with the intention of blocking her breathing, and left her in an unresponsive state, as a result of which she died. Defendant also pled guilty to fourth-degree resisting arrest, and possession of a prohibited device, which were committed when he was arrested three days later, in violation of N.J.S.A. 2C:29-2(a), and N.J.S.A. 2C:39-3(h). The plea agreement authorized the State to recommend a sentence on the aggravated manslaughter charge of eighteen years, of which eighty-five percent would be served before eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(2); and concurrent terms of eighteen months on the fourth-degree charges. Defendant reserved the right to argue for less. The State also agreed to dismiss two third-degree aggravated assault charges, two fourth-degree aggravated assault charges, and one third-degree charge of possession of a weapon.
In the course of the plea hearing, defendant stated that he was thinking clearly and understood the proceedings, notwithstanding that he had not received medication prescribed for him by a psychiatrist. His attorney specifically questioned him to confirm that they had extensive conversations about the plea and defendant was able to think clearly and understand his actions. Defendant also stated that he was satisfied with his attorney, who answered defendant's questions and adequately reviewed the plea agreement.
At defendant's sentencing hearing on October 22, 2004, defense counsel argued that defendant had a lengthy and extensive psychiatric history of compulsive behavior, depression, and bipolar disorder which were untreated when he committed the offense. He urged the court to find as a mitigating factor that there 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). Counsel acknowledged that defendant's mental illness was more precisely an explanation of defendant's conduct, rather than an excuse or justification.
Counsel also urged the court to find as a mitigating factor that the defendant had led a largely law abiding life. N.J.S.A. 2C:44-1(b)(7). Although not tying it to a statutory factor, counsel also noted that while medicated in custody, defendant had avoided altercations within the institution. He supplied the court with a psychiatric expert's report, as well as letters from defendant's stepmother, and uncle who was a church deacon. He suggested that a 15-year sentence would be appropriate.
The defendant spoke on his own behalf at sentencing. Although noting that he did not receive medication before his court appearance, he stated that he had prepared a written statement in advance. He expressed remorse and sympathy for the victim's family. When asked if he had any additions or corrections to the presentence report, defendant stated, "No, nothing major, sir." He did not deny receiving or reviewing the report.
The prosecutor responded that the court should consider as aggravating factors the risk the defendant would re-offend, the extent of his prior record, and the need to deter. N.J.S.A. 2C:44-1(a)(3), (6), (9). He argued that the court should give little weight to defendant's mental illness because, according to defendant's own expert, defendant had generally been non-compliant with psychiatric treatment and medications, resulting in frequent relapses. The court also heard from the victim's family members.
The court sentenced defendant, in accord with the plea agreement, to eighteen years on the aggravated manslaughter, subject to NERA, concurrent with eighteen month terms on the two fourth-degree charges. The court noted that the defendant knew the victim, according to the undisputed presentence report. She died from strangulation and suffocation in her bedroom, while her child was in the home. The court gave significant weight to the risk of re-offending, which he based in part on defendant's past failure to comply with mental health treatment. N.J.S.A. 2C:44-1(a)(3). The court found that "any weight to be given to mitigating factor number 4 ["substantial factors tending to excuse or justify" defendant's conduct, N.J.S.A. 2C:44-1(b)(4)], would be entirely eradicated by the fact that Mr. Murphy understood he had had treatment available to him, and chose to disregard same." The court gave moderate weight to the aggravating factor of defendant's prior record, implicitly rejecting defendant's claim of living a law-abiding life. N.J.S.A. 2C:44-1(a)(6). The court also found a "strong need to deter this defendant." N.J.S.A. 2C:44-1(1)(9). A judgment of conviction was entered October 22, 2004.
Having considered defendant's appeal on a sentencing calendar pursuant to Rule 2:9-11, we affirmed defendant's conviction and sentence on February 7, 2006, concluding that the sentence was not manifestly excessive, unduly punitive, nor did it constitute an abuse of discretion. We remanded for a correction of the judgment of conviction, which erroneously reflected a ...