On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-08-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
Defendant appeals from a June 21, 2010 order denying her petition for post-conviction relief (PCR). Defendant argues primarily that her plea counsel was ineffective because counsel (1) was not present when defendant later sought to modify her plea agreement; and (2) failed to argue all applicable mitigating factors at sentencing. We affirm.
In August 2005, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in exchange for a State recommendation of a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At her plea hearing, defendant testified that she and co-defendant, Charles Poe, "placed a [plastic] bag over the victim's head until [the victim] was dead, and [then they] removed [the victim's] body from the house and transferred it to [Pennsylvania]." Defendant agreed as part of her plea agreement to provide truthful testimony at Poe's trial. The plea judge indicated that defendant would be sentenced after Poe was tried.
Poe's first trial commenced, but the court declared a mistrial.
The State retried Poe and obtained a conviction.*fn1 Defendant cooperated and testified at both trials.
In January 2007, the judge sentenced defendant in accordance with the plea agreement. Defense counsel argued, however, that the judge should weigh heavily three mitigating factors: N.J.S.A. 2C:44-1b(12) (defendant cooperated and testified twice), N.J.S.A. 2C:44-1b(9) (defendant stated she was remorseful), and N.J.S.A. 2C:44-1b(11) (defendant argued that she suffered from mental health illnesses and alcoholism). He requested that the judge depart from the plea agreement and impose a ten-year sentence subject to NERA. The judge found aggravating factors N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense including whether it was committed in an especially heinous, cruel, or depraved manner), and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). Regarding mitigating factors, the judge noted that defendant "testified on two occasions at two separate trials," and that "[s]he suffers from depression and may suffer from some form of alcohol abuse." He concluded that "[t]he aggravating factors clearly and substantially outweigh[ed] the mitigating factors," and stated:
[The victim] was handcuffed behind her back, pushed on a bed, restrained at her shoulders by [Poe], . . . and restrained from any leg movement by [defendant]. Repeatedly, [defendant and Poe] put plastic bags over the victim's head, the victim biting through the bags in succession. The entire incident took an exceptional amount of time, the victim succumbing after the fourth bag was placed over her head and held so tightly that it produced exceptional internal bleeding in the neck[.]
Defendant appealed from her sentence and argued that the judge erred by not applying all applicable mitigating factors.
In May 2008, after conducting an excessive sentencing oral argument (ESOA) calendar, we reversed, remanded, and directed the judge to consider two additional mitigating factors, N.J.S.A. 2C:44-1b(7) (defendant has no history or prior delinquency or criminal activity) and N.J.S.A. 2C:44-1b(13) (the conduct of a youthful defendant was substantially influenced by another person more mature than defendant). On remand, the court followed our instructions, applied mitigating factor (7), determined that mitigating factor (13) was inapplicable, and imposed the same sentence. In April 2009, after we conducted a second ESOA calendar, we affirmed the resentence and concluded that the "the sentence is not manifestly excessive or unduly punitive."
In August 2009, defendant filed her petition for PCR. Defendant asserted that her plea counsel failed to argue at sentencing that she suffered from an abusive childhood and mental health issues.*fn2 PCR counsel contended, therefore, that "[defendant] seeks to have the sentence . . . set aside and the case set down for a new sentencing." Judge Mitchel E. Ostrer conducted oral argument, issued a twelve-page oral opinion, and denied the petition. Judge Ostrer stated:
[T]he petition fails . . . on the prejudice prong,*fn3 which is, is there a reasonable probability that but for counsel's error, [of being absent when defendant attempted to re-negotiate her plea agreement to reduce her jail term to fewer than fifteen years in prison ...