STATE OF NEW JERSEY v. CHRISTOPHER McCRAY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2763-07T42763-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER McCRAY, a/k/a

CHRISTOPHER MCRAY,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 20, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-11-2158.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Christopher McCray, appeals from the denial of his petition for post-conviction relief (PCR). Defendant is serving a twenty-year sentence subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), and related offenses. Pursuant to a plea agreement, the murder charge was amended to aggravated manslaughter, and in exchange for defendant's plea to that downgraded charge, the State agreed to dismiss all other counts of the indictment and recommend a sentence not exceeding twenty years imprisonment subject to an 85% NERA parole disqualifier. Additionally, the sentence would be served concurrent with a sentence defendant was then serving.

After defendant entered his guilty plea, Judge Callahan imposed the sentence recommended in the plea agreement. Defendant appealed. Because his appeal pertained only to his sentence, it was assigned to our excessive sentencing calendar. See R. 2:9-11. After hearing oral argument, we entered an order on December 14, 2005 rejecting appellant's argument that his sentence was excessive, and we affirmed the sentence. State v. McCray, No. A-2140-02T4 (App. Div. December 14, 2005). On February 23, 2006, the Supreme Court denied defendant's petition for certification. State v. McCray, 186 N.J. 258 (2006).

Defendant then filed his PCR petition. He argued that his plea counsel was ineffective for failing to obtain a psychological evaluation and assert a diminished capacity defense. Importantly, defendant did not claim he was innocent and did not seek to withdraw his plea of guilty to aggravated manslaughter. He sought only a reduced sentence. In support of his petition, he produced a psychological report, resulting from an evaluation conducted on December 5, 2006. The evaluator opined that when defendant committed the homicide, he suffered from post-traumatic stress disorder and he "was functioning within a context of diminished mental capacity . . . ." Defendant argued that had his plea attorney obtained such an evaluation and report, he might have gotten a better plea bargain from the prosecutor or the judge might have found mitigating factors and imposed a lower sentence.

Judge Callahan rejected defendant's arguments, and, without granting an evidentiary hearing, denied defendant's PCR petition by order of June 29, 2007. The order was accompanied by a fourteen-page written opinion.

In the appellate brief filed by his attorney, defendant argues:

POINT I

DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHOLOGICAL ASSESSMENT OF DEFENDANT FOR POST-TRAUMATIC STRESS DISORDER AND DIMINISHED MENTAL CAPACITY (U.S. CONST., Amend. VI, XIV; N.J. CONST. (1947), Art. I, par.10).

A. Defendant Counsel's Failure to Obtain an Assessment of Defendant's Mental Status Was Not in Accord with Reasonable Professional Judgment.

B. Defendant Was Prejudiced By Defense's Counsel's Ineffective Representation.

C. The PCR Court Erred in Denying Defendant's Petition.

POINT II

DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING BY FAILING TO ARGUE FOR APPLICABLE MITIGATING FACTORS THAT SHOULD HAVE REDUCED THE LENGTH OF DEFENDANT'S SENTENCE BELOW TWENTY YEARS.

POINT III

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

In a supplemental pro se brief, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING DESPITE THE FACT THAT THERE WAS A PRIMA FACIE SHOWING THAT DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHOLOGICAL ASSESSMENT OF DEFENDANT FOR POST-TRAUMATIC STRESS DISORDER AND DIMINISHED MENTAL CAPACITY (U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR.10).

POINT II

THE PCR COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WHEREIN DEFENDANT CLEARLY ESTABLISHED A PRIMA FACIE SHOWING TH[AT] HE WOULD NOT HAVE PLED GUILTY BUT FOR COUNSEL'S ERRORS.

POINT III

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF DESPITE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL AT SENTENCING IN COUNSEL'S FAILURE TO ARGUE FOR MITIGATING FACTORS 1 THROUGH 5 THAT SHOULD HAVE REDUCED DEFENDANT'S SENTENCE.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING BASED ON THE CUMULATIVE EFFECT ON DEFENSE COUNSEL'S ERRORS.

We reject these arguments and affirm substantially for the reasons expressed by Judge Callahan in his thorough and well reasoned written opinion of June 29, 2007. Defendant's arguments on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, for the sake of completeness, we briefly set forth the factual circumstances of the crime and comment briefly on the legal issues implicated in the appeal.

In 1996, in a melee outside a nightclub, Jamie Davis shot defendant in the hip. Davis was a gang member and a thug in the neighborhood. For shooting defendant, he was charged, convicted and sentenced to prison. While in prison, he made threats that were communicated to defendant that, when he got out, he was going to kill defendant and his family. Within days after his release from prison, Davis confronted defendant on the street and robbed him at gunpoint. The next day, July 11, 2000, defendant armed himself with a gun and encountered Davis on the street. According to defendant, Davis drew his gun, in response to which defendant drew his and shot Davis. While Davis lay on the ground, defendant admittedly could have safely left the area. Instead he shot Davis a second time. Davis died from the gunshot wounds.

The entire background of the case as we have briefly outlined it, was fully known to the prosecutor and provided the inducement to downgrade the murder charge to aggravated manslaughter. Defendant had asserted a defense of self-defense. However, at his plea hearing, defendant acknowledged that self-defense was not a viable defense because, even if Davis drew his gun first, after defendant fired the first shot and disabled Davis, he could have safely left the area.

The plea agreement set a maximum sentence of twenty years, the then presumptive sentence for aggravated manslaughter, which contains an ordinary term range of ten to thirty years. N.J.S.A. 2C:11-4c; N.J.S.A. 2C:44-1f(1)(a). At sentencing, defendant's attorney argued for mitigation. He argued that the homicide was, at least in a general sense, the result of self-defense or imperfect self-defense, essentially contending that victim provocation was a factor. The argument also embodied the concepts that the victim induced or facilitated the offense and that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense. Counsel urged the court to "look at what was everything leading up to it. Those mitigating factors which rarely get used, okay. There's something that I think today the Court's going to use, okay, does some of the conduct of the victim create this in the defendant." Counsel commented that this was a situation involving "bad blood that finally boiled over." He urged that "there are mitigating factors that do apply for Mr. McCray." Counsel argued that a fifteen-year sentence with an 85% parole disqualifier would be an appropriate sentence under all of the circumstances.

Judge Callahan found the presence of three aggravating factors, defendant's extensive past criminal record, the likelihood that he would commit another offense, and the strong need for deterrence. See N.J.S.A. 2C:44-1a(3), (6), and (9). He found only the non-statutory mitigating factor of remorse. He was clearly convinced that the aggravating factors "completely and substantially outweigh[ed] the mitigating factors." Those findings would have justified an above-presumptive sentence of between twenty and thirty years, subject to the mandatory NERA parole disqualifier. However, Judge Callahan accepted the plea agreement and imposed the twenty-year sentence it recommended.

On direct appeal, defendant's appellate counsel again made clear that defendant did not assert his innocence and did not wish to withdraw his plea of guilty to aggravated manslaughter. Appellate counsel, like defendant's plea counsel, urged that we reduce defendant's sentence to fifteen years. He argued that the mitigating factor of strong provocation from the victim should have been considered, and, indeed, "that's the essence of the case." He argued that notwithstanding defendant's prior criminal record, "the facts of this case and the background that led to the incident at all are what counts here." He also argued for further mitigation because defendant's sentence resulted in significant hardship to members of defendant's family. We rejected the arguments and found no impropriety in the sentence imposed.

In his PCR proceeding, defendant again made clear that he was not asserting his innocence and did not wish to vacate his plea of guilty to aggravated manslaughter. Judge Callahan referred to the colloquy at the plea proceeding and his recollection of defendant's demeanor at that time. He was satisfied that there was nothing in defendant's conduct or his description of the events that indicated he had been acting under a diminished capacity at the time of the crime. Further, he reasoned that the issue of diminished capacity was, in essence, factored into the plea negotiations. This is so because the prosecutor, in recognition of the history leading up to defendant's shooting of Davis, agreed to negate the knowing or purposeful mental state required for murder and replace it with the mental state of recklessness of causing death under circumstances manifesting extreme indifference to human life, the requisite mental state for aggravated manslaughter. Finally, Judge Callahan rejected the mitigating factors proffered by defendant, but made a finding that even if all of them applied, they would not outweigh the aggravating factors he previously found. Accordingly, the judge expressed the view that his sentence would have been the same even if he found those mitigating factors applicable. We note that defendant has never disputed the correctness of the judge's findings regarding aggravating factors.

To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy both prongs of the Strickland/Fritz test, namely that his counsel's performance was deficient, and that, but for the errors of counsel, there is a reasonable probability that the result of the proceeding would have been different. Neither prong was satisfied here. Defendant has produced no evidence to suggest that his plea counsel was on notice of any information that would support the existence of a psychological infirmity at the time of the homicide. His counsel was, of course, well aware of the background with Davis and presented persuasive arguments based upon that background to successfully get a murder charge reduced to aggravated manslaughter. Defendant does not contend that he acted in a bazaar manner, had a prior psychological or psychiatric history, told his attorney anything suggesting he had a mental health problem, or the like. Naturally, at the time of the crime and leading up to it, defendant was in fear for his safety. Anyone would be under the circumstances. That is not an indication of diminished capacity. Accordingly, Judge Callahan was correct in finding that defendant's plea counsel was not deficient.

Even if plea counsel was deficient for not obtaining a psychological evaluation, the result would have been the same. We emphasize once more that defendant does not want to withdraw his plea of guilty to aggravated manslaughter. He does not want to go to trial for murder and the other dismissed counts. He simply wants a lower sentence. Judge Callahan considered all of the mitigating factors proffered by defendant, namely that he did not contemplate that his conduct would cause or threaten serious harm, that he acted under strong provocation, that there were substantial grounds tending to excuse or justify his conduct (though failing to establish a defense), and that the victim induced or facilitated the commission of his crime. See N.J.S.A. 2C:44-1b(2), (3), (4), and (5). Indeed, he commented that he had taken those circumstances into account as part of his sentencing analysis, with the 2006 psychological report in hand, and assuming that those mitigating factors applied, the mitigating factors would not have outweighed the aggravating factors and he would have imposed the same twenty-year sentence. In essence, defendant got the relief he was seeking, namely a reconsideration of sentence with consideration being given to his psychological report opining that he was operating under diminished capacity and consideration of his proffered mitigating factors.

We are satisfied from our review of the record that the judge correctly held that the second Strickland/Fritz prong was not satisfied. A diminished capacity psychological report, such as that produced by defendant in 2006, would not have changed the sentence that was imposed in 2002. And, there is no basis in this record upon which to believe that the prosecutor would have agreed to recommend a sentence lower than twenty years had it been presented with such a psychological report. On the contrary, having been presented with the report, the prosecutor has steadfastly argued in the PCR proceeding and on appeal that the report should not change the result.

Finally, we agree with Judge Callahan's conclusion that defendant's arguments regarding mitigating factors were procedurally barred. PCR is not a substitute for appeal. R. 3:22-3. Arguments regarding mitigating factors are not a proper subject of a PCR proceeding because they could have been presented at sentencing or on direct appeal, see R. 3:22-4, and because, in this case, they were in fact argued and adjudicated in both of those proceedings. See R. 3:22-5.

 
Affirmed.

On appeal, defendant argues that had his plea counsel obtained a psychological evaluation demonstrating diminished capacity, he might have been able to negotiate a plea to a second-degree homicide for either reckless manslaughter or passion provocation manslaughter. See N.J.S.A. 2C:11-4(b)(1), (2). Defendant did not raise that argument in the PCR proceeding, and it is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, the argument is purely speculative. There is no basis upon which to believe that the prosecutor would have considered reduction of the first-degree murder charge to a second-degree homicide charge.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-2763-07T4

May 19, 2009