STATE OF NEW JERSEY v. MICHAEL SIMMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1660-07T41660-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL SIMMS,

Defendant-Appellant.

_________________________________________________

 

Submitted February 11, 2009 - Decided

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-03-0487.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Jacqueline A. Farrell, Legal Assistant, on the brief).

PER CURIAM

Following a trial, defendant was convicted of three counts of second-degree aggravated assault and one count of third-degree hindering the apprehension of another. As to the aggravated assault convictions, the jury made the additional finding that defendant had committed violent crimes as defined by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Judge Ira E. Kreizman sentenced defendant to concurrent ten-year prison terms on the aggravated assault convictions, subject to an 85% period of parole ineligibility, pursuant to NERA, and a three-year period of parole supervision upon release.

These convictions arose out of a shooting that occurred in Freehold on October 19, 2000. We briefly described this occurrence in an unpublished opinion that disposed of defendant's direct appeal:

At that time, a verbal dispute broke out at the Parrish home at 79 Throckmorton Street between two groups of men. One group con-sisted of defendant and Jamaal Sconiers; the other group consisted of Anthony Parrish, Timothy Parrish, Amin Suluki and Brandell (Marcus) Bailey. After the argument, defen-dant and Sconiers left the area but soon located defendant's brother Thomas in another area in Freehold. At that time, defendant asked Thomas Simms "if he had a gun on him," prompting the three to go to Thomas's rented room, and from there to another area of Freehold where they picked up John Simms, the uncle of defendant and Thomas. This group of four -- defendant, Thomas Simms, John Simms and Sconiers -- then proceeded to the Parrish home.

[State v. Michael Simms, No. A-5632-02T4 (App. Div. February 18, 2005) (slip op. at 2).]

We then described the events that followed, once the group that included defendant arrived at the Parrish home, by referring to our unpublished opinion in the appeal filed by Thomas Simms:

When they arrived, [Thomas Simms] alighted from the vehicle and engaged Anthony Parrish in an aggressive verbal argument; [defendant], John Simms and Sconiers also exited the vehicle. Anticipating a physical fist fight, Anthony instructed Amin to go inside the Parrish house and tell Timothy to come outside. When Timothy and Amin emerged from the house, Anthony took off his leather jacket and threw it to the ground.

[Thomas Simms] then took out a nine-millimeter pistol he had concealed on his person and shot Anthony behind his left ear. [Thomas Simms] then shot Bailey in the face, Timothy in the face, and Amin in the buttocks as he was attempting to run away. None of the victims was armed, nor had they threatened anyone with a weapon. Anthony, Bailey and Timothy sustained severe and life-threatening injuries, but survived. Amin sustained injuries that required abdominal surgery and removal of a portion of his intestines; he also survived.

[Id. at 2-3 (quoting State v. Thomas Simms, No. A-1781-02T4 (App. Div. February 18, 2005).]

In his direct appeal, defendant argued that the Graves Act, N.J.S.A. 2C:43-6(c), should not have applied to his sentence and that the sentence was otherwise excessive; he did not argue his entitlement to be resentenced pursuant to the constitutional principles recognized in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We rejected all of defendant's arguments with regard to his convictions and his sentence, and affirmed.

Defendant's motion for reconsideration was denied on April 1, 2005. His petition for certification was denied by the Supreme Court of New Jersey on July 14, 2005. 185 N.J. 38 (2005).

Defendant filed a petition for post-conviction relief on May 10, 2006, chiefly arguing that his appellate counsel was constitutionally ineffective because he failed to challenge his sentence based on Blakely. In the alternative, defendant requested that the trial judge resentence him in light of State v. Natale, 184 N.J. 458 (2005), which was decided shortly after we disposed of defendant's direct appeal. Defendant also argued that he was "wrongly convicted because the evidence showed that he was not an aggressor, but instead attempted to prevent the crimes alleged."

Judge Kreizman resentenced defendant in light of Natale, thus rendering moot the argument that appellate counsel was ineffective. In resentencing defendant, the judge imposed the same sentence. In denying post-conviction relief, Judge Kreizman said, among other things, that this was "one of the worst cases I've seen. I've been doing this for a long time, and you are as responsible for it as anybody."

In appealing the denial of post-conviction relief, defendant presents the following arguments for our consideration:

I. THE JUDGE AFTER FINDING DEFENDANT WAS ENTITLED TO BE RESENTENCED ERRED IN IMPOSING THE SENTENCE BECAUSE HE BASED IT ON FACTS REJECTED BY THE JURY.

II. DEFENDANT IS ENTITLED TO AN EVIDENTARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT IN HIS PRO-SE PETITION FOR POST-CONVICTION RELIEF.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

We initially observe that defendant did not refer in his notice of appeal to the amended judgment of conviction entered by the trial judge following the Natale resentence. The notice of appeal references only the denial of defendant's petition for post-conviction relief. Accordingly, defendant's argument that Judge Kreizman erred in relying upon his own view of the facts, which defendant argues were contrary to the jury's view, even if true, has not been properly raised in this appeal. See, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994).

The contention that Judge Kreizman erred in rejecting defendant's argument that he was not culpable for the crimes for which he was convicted is completely void of merit. The jury found defendant guilty of second-degree aggravated assault in connection with the shooting of three of the victims. The evidence more than amply supports that conclusion. As our earlier recitation of the facts reveals, and as the trial judge also recognized, defendant rounded up his brother and uncle in order to return to the Parrish house for a second confrontation. In taking these steps, defendant was instrumental in urging Thomas Simms to bring a firearm, which was later used to engage in the mayhem that followed. We find no error in the trial judge's rejection of defendant's contention in his petition for post-conviction relief that he did not bear responsibility for the shootings.

Affirmed.

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A-1660-07T4

March 6, 2009