February 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HELEN EWELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-09-1155.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Sapp-Peterson and Newman.
Defendant Helen Ewell appeals from an order denying her petition for post-conviction relief (PCR). We affirm.
The relevant facts may be summarized as follows: On September 5, 2001, a Mercer County Grand Jury indicted defendant on Count One for first-degree murder (N.J.S.A. 2C:11-3a(2), Count Two, first-degree felony murder (N.J.S.A. 2C:11-3a(3), Count Three, second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a, and Count Four, first-degree robbery, N.J.S.A. 2C:15-1. Defendant plead guilty to Accusation No. 03-06-292, charging first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1).
A plea agreement was made in which the State agreed to recommend a sentence of twenty-five years incarceration, eighty-five percent of which was to be served before defendant would be parole eligible in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2d(2), and dismiss the pending indictment in its entirety.
At the time of the plea, it was determined that defendant and Frank Hickmond resided together for almost four years at 307 Church Street in Trenton. Both defendant and the victim had been arguing most of the day. Defendant retrieved a handgun and pointed it at the unarmed victim who was seated on the couch in the living room of the residence. She fired the gun and struck the victim in the temple. She did not seek any medical attention for him, but instead went through his pockets to obtain money in order to buy drugs. The next day, she reported the shooting to the police.
The trial court sentenced defendant to twenty years imprisonment, eighty-five percent of which was to be served without parole eligibility. Prior to imposing sentence, the trial judge described the incident as an "execution." The trial judge recognized that defendant's criminal record was de minimus in relation to the aggravated manslaughter charge and thought it unlikely she would kill again. The court found on the record that the aggravating factors substantially outweighed the mitigating factors. The trial judge noted that he lacked sufficient information to determine if defendant had acted under a strong provocation because the contention that she suffered verbal and physical abuse by defendant was not supported with documentation in the absence of trial testimony. Notwithstanding what the trial judge stated at sentencing, the judgment of conviction enumerated three aggravating factors and five mitigating factors.
Defendant took a direct appeal to this court, and the matter was heard by an excessive sentencing panel. At argument before the sentencing panel, defense counsel raised the issue regarding the discrepancy between the aggravating and mitigating factors mentioned at sentencing and those appearing in the judgment of conviction. Nonetheless, this court found the sentence was "not unreasonable" and "even given full effect to all of those mitigating factors, could find no abuse of discretion in the imposition of what is the presumptive sentence for the offense of aggravated manslaughter." This court speaking through Judge Skillman found that the sentence was neither manifestly excessive nor unduly punitive and did not constitute an abuse of discretion.
Defendant filed for post-conviction relief. In denying relief, the PCR judge applied the two-prong standard to review ineffective assistance of counsel claims as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 80 L.Ed. 2d 674 (1984) and as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The PCR judge considered it a strategic decision to argue within the range of the degree of offense for which defendant plead guilty. Thus, there was no ineffective assistance rendered.
Even, however, had defense counsel argued that the defendant be sentenced to one degree lower, there would not have been a different outcome in the sentencing. The PCR judge indicated that there was no reasonable probability that the result would have been different. With respect to the discrepancy between the judgment of conviction and what the trial judge stated on the record, the PCR judge indicated that the sentencing transcript was controlling. The PCR judge also noted that these arguments were made to some extent on the direct appeal and that the sentence was found not to be excessive. The PCR judge noted that it should not review issues that were already challenged on the direct appeal, citing State v. Cupe 289 N.J. Super. 1, 8 (App. Div. 1996) certif. denied, 144 N.J. 589 (1996). In rejecting the contention that there were factual issues that should have been decided by a hearing at the time of sentencing, the PCR judge indicated that the sentencing proceeding is not a trial where issues are explored through direct and cross-examination. The PCR judge rejected that such a hearing was required and stated he did not think that even if the argument had been made, it would have made any difference.
On appeal, defendant raises the following issues for our consideration:
POINT I THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR SENTENCING PROCEDURE, INCLUDING THE RIGHT TO A FACT-FINDING HEARING TO ESTABLISH THE APPLICABILITY OF MITIGATING FACTORS WAS VIOLATED.
POINT II SINCE THE DEFENDANT MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT III THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES
RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
We have considered defendant's arguments and reject them. We affirm substantially for the reasons expressed by PCR Judge Ostrer in his oral decision on August 21, 2009. We add only the following brief comments. We see no reason to have held an evidentiary hearing since there was no showing made that one needed to be held. Put another way, no prima facie showing of ineffectiveness had been made by defendant.
With regard to the discrepancy between the sentencing transcript and the judgment of conviction, that issue had already been presented to this court via the excessive sentencing panel. Post-conviction relief is not a substitute where the direct appeal has already been heard, Rule 3:22-3; nor is it an opportunity to relitigate issues already decided. R. 3:22-5; State v. Cerbo, 78 N.J. 595, 605 (1979).
To the extent that defendant claims that a factual hearing should have been held before sentencing, there was no basis for the court to have conducted such a proceeding. Indeed, defendant received the benefit of the forensic psychiatric report prepared by Dr. Daniel Greenfield who was not subjected to cross-examination. His opinion was taken into account with regard to whether defendant had reasonable provocation to have killed her boyfriend. The trial judge was also apprised of this contention and considered it at sentencing. Defendant did not explain what would have been presented differently, or what additional information was excluded from Dr. Greenfield's report, to require that an evidentiary hearing be held.
We have considered any other issues raised by defendant pro se and by defendant's counsel in the post-conviction relief proceeding not expressly addressed and find them to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
The order denying post-conviction relief is affirmed.
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