STATE OF NEW JERSEY v. SAMMIE CHISOLM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1302-05T41302-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMMIE CHISOLM,

Defendant-Appellant.

___________________________________________________

 

Submitted September 27, 2006 - Decided October 26, 2006

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Warren County,

Docket No. 99-02-0085.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J. Owens,

Designated Counsel, on the brief).

Thomas S. Ferguson, Warren County Prosecutor,

attorney for respondent (Tara J. Kirkendall,

Assistant Prosecutor, of counsel).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR).

Defendant was convicted of murder and weapons offenses. He was sentenced to forty years imprisonment, with thirty years to be served before parole eligibility, for the murder, and to concurrent sentences on the weapons offenses. On his direct appeal defendant argued that his motion for a directed verdict should have been granted, that he was denied "the right to a fair trial when the court denied him the opportunity to introduce evidence that he had previously been jumped and his father was stabbed to death," that his confession was improperly admitted, that the prosecutor's summation constituted "misconduct," and that the sentence was excessive. The defendant also had raised various issues in his pro se supplementary brief. We rejected these contentions and affirmed the conviction.

Defendant's subsequent petition for post-conviction relief was denied on October 5, 2005, and on this appeal he seeks reversal of the denial which was based on procedural grounds, R. 3:22-4, 5, and defendant's failure to demonstrate that he had ineffective assistance of trial counsel. Alternatively, he seeks an evidentiary hearing on that issue. Specifically, he argues:

POINT I THE LOWER COURT'S CONCLUSION THAT DEFENDANT'S

GROUNDS FOR POST-CONVICTION RELIEF WERE BARRED DUE TO THE FACT THAT THEY COULD HAVE BEEN RAISED IN EARLIER PROCEEDINGS AND WERE NOT WAS IN ERROR.

POINT II THE POST-CONVICTION RELIEF COURT ERRED IN FINDING

THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS

DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III THE POST-CONVICTION RELIEF COURT ERRED IN FAILING

TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE

ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

Defendant asserts that his "[t]rial counsel failed to advise [him] that if defendant accepted the State's offer to plead guilty to aggravated manslaughter, trial counsel could have argued for a sentence lower than the recommended 22 year sentence." He also asserts that the presentation of Dr. Greenfield's letter would have impacted on the findings of mitigating factors. As to the latter, the PCR judge - who sentenced defendant - found otherwise, and that should be dispositive.

Under our rules, the sentence offer must be expressed on the record at the pretrial conference. R. 3:9-1(e). One of defendant's counsel certified as to her practice and perceived no reason why it would not have applied in this case with respect to plea discussions. She stated:

7. Although I do not recall specifics of the plea negotiations I know there were plea

discussions and a plea offer was tendered to

Mr. Chisolm through me prior to his indictment.

8. It was my standard practice developed over the years in which I represented defendants in criminal proceedings to advise any of my clients that a period of incarceration set forth in a plea offer is a maximum period of time that they could be incarcerated and that they and I as their attorney could present information and arguments in mitigation which could possibly result in a sentence less than the maximum set forth in the plea offer.

9. Although I do not have a specific recollection of providing this information to Mr. Chisolm that was my standard practice and I have no reason to believe that I did not so advise him in the course of my representation of him.

Further, the record reflects that different counsel indicated at the pretrial conference in front of defendant that he was not interested in pleading to the lowest sentence the prosecutor would accept. The transcript reveals:

THE COURT: Okay. Get a copy of the order before you go -- oh, by the way, I have to do this. The plea offer, I guess we should put on the table since this is a final opportunity to negotiate this.

[DEFENSE COUNSEL]: Judge, the prosecutor is still insisting on a plea to aggravated manslaughter. Mr. Chisolm is not willing to plead guilty to that.

THE COURT: Okay. What's the bottom line on the sentence?

[DEFENSE COUNSEL]: It's 20 something --

[ASSISTANT PROSECUTOR]: It was 22.

[DEFENSE COUNSEL]: 22, yes.

[ASSISTANT PROSECUTOR]: I did suggest today that if they were willing to plea or Mr. Chisolm was willing to plead to an ag[gravated] manslaughter straight up as an option and leave it to you, Judge, and we would argue and they could argue that I would go to the prosecutor and discuss that.

But at this point my understanding is Mr. Chisolm would just like to plead to a reckless manslaughter which is a maximum ten years and we are not going to do that.

THE COURT: Okay. I --

The record supports the judge's findings.

Finally, there is no "presumptive" sentence for murder, and the murder sentence was not illegal. State v. Abdullah, 184 N.J. 497, 507-08 (2005). Further, the record does not reveal a basis for retroactive reconsideration of the concurrent sentences imposed on the weapons offenses. State v. Natale, 184 N.J. 458, 494 (2005).

The order is affirmed substantially for the reasons expressed by Judge John H. Pursel in his opinion of October 5, 2005, as supplemented herein.

 

The PCR judge found no time bar. While noting the existence of procedural bars, the judge did address defendant's principal contentions on the merits.

No merger issue is raised.

(continued)

(continued)

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A-1302-05T4

October 26, 2006