STATE OF NEW JERSEY v. LENNY ROSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4953-07T44953-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LENNY ROSS,

Defendant-Appellant.

___________________________

 

Submitted April 21, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 05-11-2509 and 06-02-0468.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for the respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lenny Ross appeals from the February 15, 2008 order of the trial court denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged in two separate indictments with a total of eight weapons-related offenses that occurred on July 22 and 29, 2005. At the time he was indicted on these charges, defendant was on probation in connection with a prior conviction for possession of heroin with intent to distribute.

On April 13, 2006, defendant entered into a negotiated plea agreement whereby he pled guilty to two charges of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. At his plea hearing, defendant admitted to being in possession of a nine millimeter handgun on July 22 and 29, 2005. The police reports of July 22, 2005 further indicated that an individual named Jamil Prevard had been shot in the foot near the apartment in which defendant was found with the weapon. Prevard, however, was described in the report as "uncooperative and . . . stated [that] he could not identify the shooter."

On May 5, 2006, defendant was sentenced in accordance with the plea agreement to two concurrent eight-year terms of imprisonment with a five-year period of parole ineligibility. This sentence was to run concurrent with any sentence defendant received for violation of his probation.

Defendant did not appeal his conviction and sentence. He did, however, file a PCR petition on December 15, 2006, alleging that (1) the trial judge improperly failed to consider certain mitigating factors in imposing sentence; and (2) trial counsel was ineffective for failing to argue these mitigating factors on defendant's behalf.

Specifically, defendant contended that the court should have considered mitigating factors two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1(b)(2); three, "[t]he defendant acted under a strong provocation[,]" N.J.S.A. 2C:44-1(b)(3); five, "[t]he victim of the defendant's conduct induced or facilitated its commission[,]" N.J.S.A. 2C:44-1(b)(5); and eleven, [t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[.]" N.J.S.A. 2C:44-1(b)(11).

The gravamen of defendant's argument was that "only a few weeks prior to th[e] incident[s] . . . he was shot twice in the right leg . . . [and] was in possession of th[e] firearm for the sole reason of protection." Defendant also claimed that he was not only under the influence of marijuana, but that he was also "intoxicated because he drank so much alcohol the day and night of the offense." Defendant claimed that, if he had not been under the influence of marijuana or alcohol, "he would have not been carrying any type of firearm, . . . and, . . . on seeing someone reach for a weapon and aggressively approach him in a threatening manner, . . . he would have [ru]n away . . . and possibly reported the incident to [the] police." Defendant reiterated that the court "must try to understand [his] . . . mental state . . . , remembering that he was a victim of a shooting himself." Regarding the "hardship" factor, defendant claimed that he was the father of two young boys whom he supported financially when he was able to find employment.

Defendant argued that his trial attorney was ineffective in "fail[ing] to establish the facts, make a reasonable investigation into the [S]tate's case, to interview witnesses and present evidence on [his] behalf, [leaving him] no defense." Defendant further claimed that, "during [his] initial meetings with [his] attorney, . . . [he] told [the attorney] that [he] was shot by another individual in the recent past." Defendant asserted that his attorney "never brought it up again or asked [him] any of the details concerning the shooting . . . [and] never discussed the possibility of getting a psychological evaluation . . . ."

The same judge who had presided over defendant's plea and sentence heard his PCR claims. Assigned counsel stated at the outset of the PCR hearing that he had submitted a brief and "reports[.]" None of those documents, however, has been provided to this court.

Regarding the claim that counsel failed to investigate defendant's psychological state in connection with the offenses, the judge noted:

I was the one who was involved in the taking of this plea, and I will say this for [defense counsel]. It was as a result of negotiations and his efforts that this plea was arrived at. So the fact that he didn't seek to, in any fashion, undercut what was ultimately agreed [to] after some efforts in this case, I would hold does not constitute ineffectiveness. He did his work in front.

. . . .

Simply stated, we don't arm convicted persons as vigilantes or as persons who protect themselves. That's why law enforcement is out there. And the fact that he may have been shot by somebody else a month before does not in any way under the circumstances of this case provide any justification or any other good reason to consider that a mitigating factor when, on two separate occasions, he [was] carrying a handgun.

Regarding the claim of counsel's ineffective assistance "for failing to present various mitigating factors[,]" the judge noted:

[A]s the sentencing judge in this case that the failure to argue any of these points would have made no difference in the outcome, because what we had here was, again, two separate carrying[s] of a handgun by a convicted person under some circumstances that are set forth in the discovery that . . . would have gotten . . . [defendant] nowhere. To argue that a gun-toting felon neither caused nor threatened serious harm, I think to make that statement answers that statement.

If the defendant did not contemplate that his conduct would cause harm, that's interesting. . . . It's sort of like someone who's chemically dependent and in denial. The fact that they don't believe it's a problem makes it a bigger problem. Somebody that doesn't think toting a gun on the streets of our community with a conviction which bars you from having it doesn't cause a potential for harm is a bigger problem than they otherwise would have been. Provocation would not be a legitimate defense or any legitimate mitigating factor to someone who is legally precluded from carrying a firearm, and there are no[] substantial grounds tending to excuse or justify the defendant's conduct.

[Defendant] did not have the worst record in the world, but suffice it to say that he had some contacts with the justice system, including the predicate prior conviction which would . . . make him subject to a second-degree offense with a mandatory parole stipulation should he carry a firearm, and we're dealing with two separate charges.

The judge rejected defendant's hardship claim, noting that "we're dealing with two non-merging second-degree offenses which carry a mandatory . . . parole stipulation . . . ."

Finally, the judge addressed the "psychological evaluation" submitted by PCR counsel which, the judge noted, "contain[ed] certain mental health diagnoses." The judge stated that, "even if known at that time, [none] would have altered the [c]ourt's determination as to the appropriateness of the sentence which was imposed." The judge added that defense counsel could not "be ineffective for failing to hire an expert" when defendant himself stated in his pre-sentence interview that "he doesn't have any mental health issues."

The judge thereupon denied defendant's PCR petition without affording him a plenary hearing.

On appeal, defendant raises the following arguments for our consideration:

POINT ONE

WHERE DEFENSE COUNSEL DID NOT MAKE ANY PRESENTATION TO THE SENTENCING COURT REGARDING THE DEFENDANT'S POST-TRAUMATIC STRESS DISORDER, HE DID NOT IN A CONSTITUTIONALLY EFFECTIVE MANNER REPRESENT THE DEFENDANT.

POINT TWO

AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT'S PCR COUNSEL OFFERED AS EVIDENCE OF THE DEFENDANT'S POST-TRAUMATIC STRESS DISORDER AN EXPERT REPORT WHICH THE STATE DID NOT REBUT AND THE PCR COURT DID NOT REVIEW.

Having considered these contentions in light of the record, we are satisfied that they are without merit. We affirm substantially for the reasons stated by Judge Michael R. Connor in his decision rendered from the bench on February 15, 2008. We add only the following comments.

We concur with defendant that, at sentencing, his attorney merely requested that defendant "be sentenced pursuant to the plea agreement." The judge thereupon found aggravating factors three, six and nine applicable. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found that no mitigating factors applied, and imposed the sentence recommended in the plea agreement.

At the PCR hearing, however, defendant essentially received the sentencing hearing which he claimed he should have had previously. PCR counsel advanced four mitigating factors on defendant's behalf, and submitted a psychological report that, apparently, diagnosed defendant as suffering from post-traumatic stress disorder (PTSD). Presented with the opportunity to weigh the proffered mitigating factors and the psychological evidence, the trial judge nonetheless denied defendant relief for the reasons stated.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, defendant must show that counsel's deficient performance prejudiced him. Ibid. To meet the second prong of the test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, L. Ed. 2d at 698.

Defendant continues to argue on appeal that trial counsel's failure to offer any evidence of a PTSD diagnosis at sentencing constituted ineffective assistance. The PCR judge, who had also sentenced defendant in 2006, considered this evidence, however, and rejected it as grounds for reducing defendant's sentence. Defendant thus failed to meet the second prong of Strickland.

The judge properly concluded that defendant had failed to make a prima facie case of ineffective assistance of counsel. Therefore, defendant was not entitled to a plenary hearing to address his claims. State v. Preciose, 129 N.J. 451, 462 (1992).

 
Affirmed.

(continued)

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A-4953-07T4

July 28, 2009