On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-05-0509.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 17, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Michael Smith appeals from the denial of his first petition
for post-conviction relief (PCR), without an evidentiary hearing, in
which he alleged ineffective assistance
of trial counsel in connection with sentencing issues.*fn1
On May 21, 1998, defendant was charged with first-degree murder (count one); second-degree possession of a weapon for unlawful purpose (count two); and third-degree unlawful possession of a weapon (count three). Defendant completed and signed a plea agreement, and on May 14, 2001, in accordance with the agreement, pled guilty to an amended charge of first-degree aggravated manslaughter, and counts two and three were dismissed. The court conducted a colloquy with defendant as to the knowing and voluntariness of his plea and the terms of the recommended sentence.
Defendant testified that on December 4, 1997 he fatally shot Archie Covington. According to defendant, earlier that day, he and Covington were fighting and Covington threatened to return with a gun. Instead, defendant returned to the scene with a gun and when Covington got out of a car, defendant got "scared and [he] just fired into the car and [he] hit [Covington]." The court was satisfied the plea was entered into knowingly and voluntarily, and defendant had provided an adequate factual basis for the conviction.
On September 21, 2001, defendant was sentenced to the negotiated term of twenty years in prison subject to the 85% parole ineligibility provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision. Mandatory fines and penalties were also imposed. The judge found the following aggravating factors: the risk that defendant will commit another crime in the future, N.J.S.A. 2C:44-1(a)(3); prior criminal history, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). He also considered the additional aggravating factors of the age of the victim and the impact on the victim's family. The judge found no mitigating factors. Prior to announcing the sentence, the judge explained, "[b]ut for this plea agreement, I can assure you, you would have received a greater sentence."
On June 26, 2003, defendant filed a notice of appeal challenging his sentence, and the matter was scheduled on an ESOA calendar. By order of October 9, 2003, we affirmed defendant's sentence. We concluded that "despite the improper consideration of defendant's age and harm to victim's family, the sentencing is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." On March 1, 2004, the Supreme Court denied certification. State v. Smith, 179 N.J. 369 (2004).
On October 24, 2004, defendant filed a pro se PCR petition alleging ineffective assistance of counsel and requested appointment of counsel. On June 26, 2006, counsel filed a brief on defendant's behalf, arguing ineffective assistance of trial counsel in failing to argue for mitigating circumstances at sentencing and for a sentence less than the maximum allowed by the plea agreement, that trial counsel ignored the failure to provide him with the supplemental NERA plea form, and trial counsel and the court did not adequately explain to him the additional five-year period of parole supervision under NERA.*fn2
He also argued appellate counsel failed to raise these issues, not relevant to this appeal.
On December 20, 2010, Judge Robert C. Billmeier heard oral argument and denied defendant's PCR petition by order and written opinion on January 26, 2011, concluding that an evidentiary hearing was not warranted. The judge found defendant's trial counsel performed his role reasonably, and thus defendant failed to meet the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge was satisfied defendant "received the exact terms of his bargain." He also found that mitigating factors were indirectly addressed at the sentencing. For example, defense counsel told the sentencing judge that defendant "was afraid that [the victim] would have a gun, and if he went back there . . . he could get shot." Also, defendant apologized to the family and stated to the judge that he felt threatened. See N.J.S.A. 2C:44-1(b)(3) (the defendant acted under a strong provocation), (5) (the victim induced or facilitated the defendant's conduct), and (9) (the defendant's character and attitude indicate he is unlikely to commit another offense). Additionally, the pre-sentencing report noted that defendant had a substance abuse problem. See N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense).
The judge also found that "[defendant] was well aware that as a result of his plea, he would be subject to a five-year period of parole supervision subsequent to his incarceration." Thus, it was "reasonable for trial counsel not to object to the absence of the supplemental NERA form." The judge explained that even though a defendant must be made aware of the five-year period of parole supervision pursuant to State v. Johnson, 182 N.J. 232, 241 (2005), the Supreme Court did not specify the notification had to be given via the supplemental NERA form. The judge further determined that defendant, who provided no certification, "failed to establish that he would have changed his guilty plea had he either received the supplemental NERA form or had the [sentencing judge] specifically addressed that the five-year supervised parole term could result in ...