STATE OF NEW JERSEY v. DERRICK MYERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0529-08T40529-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK MYERS, a/k/a DEEBO,

Defendant-Appellant.

__________________________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-02-0478.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Noelle V. Fiorentino, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Derrick Myers appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

By way of background, defendant was indicted by a Hudson County Grand Jury for murder, unlawful possession of a handgun, possession of a weapon with the purpose to use it unlawfully against the person of another, conspiracy to commit the crime of murder, possession of a controlled dangerous substance with intent to distribute, and possession of a firearm by a convicted person.

On June 17, 2002, defendant pled guilty to an amended count one, charging aggravated manslaughter, with the remaining counts to be dismissed at the time of sentencing. The State was free to argue at sentencing for a maximum prison term of up to twenty years with eighty-five percent parole ineligibility.

On September 12, 2002, the trial court sentenced defendant to twenty-years imprisonment, and in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, that he serve eighty-five percent of the sentence before parole eligibility. Defendant was also subject to a five-year period of parole supervision on release.

Defendant appealed his sentence to this court. On April 8, 2003, defendant's arguments were heard on an excessive sentencing calendar. Defendant's sentence was found not to be excessive, unduly punitive, or an abuse of discretion. The Supreme Court denied defendant's petition for certification.

On September 11, 2007, defendant filed a petition for PCR. Defendant argued that he was denied the effective assistance of counsel because his attorney did not seek to have him examined to determine whether he had a mental disease or defect at the time of his offense. Defendant asserted that if he suffered from a diminished capacity, this information could have been used to reduce the offer in the plea bargain from aggravated manslaughter to manslaughter or defendant could have proceeded to trial urging the diminished capacity defense. In rejecting this argument, Judge Sarkisian had this to say concerning defendant's mental status:

In the present case, Defendant Myers may have suffered emotional and physical abuse that impaired his mental and emotional growth. However, I have found no evidence of a mental disease or defect referred to in several of the previous in-patient psychological and psychiatric examinations that would give rise to an obligation under the Strickland-Fritz test for defense counsel to ask for a diminished capacity evaluation by a medical professional. The Court also notes [that] in the latter evaluations of the defendant performed approximately two (2) years before the incident reflect, inter alia, that Myers exercises poor judgment and resorts to violence to cover up his academic performance. In fact, Dr. Yokell's 10/21/98 report, notes that "As best as I can determine, he answers questions logically and coherently with no gross secondary signs of psychosis." Unlike Juinta, there were no allegations of "voices telling him to do it." In fact, when questioned as to why Myers killed Dawson, the response was, "cause he owed me money."

Judge Sarkisian went on to hold that defendant had not established a prima facie case of ineffective assistance of counsel to warrant granting an evidentiary hearing. Nor did he demonstrate a reasonable likelihood of succeeding for determining the adequacy of counsel's representation. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.

Defendant also argued in his petition that the sentencing court erred in its application of aggravating factor eleven, N.J.S.A. 2C:44-1a(11); that the sentencing court failed to properly find and weigh all the aggravating and mitigating factors and because of these inconsistencies, the sentence was illegal; that defendant's sentence was unconstitutional because he was sentenced to a term greater than the presumptive term; and he was denied the effective assistance of counsel because his attorney assured him he would not receive a sentence in excess of fifteen years if he entered a plea of guilty to aggravated manslaughter.

The PCR court agreed that aggravating factor number eleven, relating to the cost of doing business, was not applicable in this case, but that it did not change the sentence which was legal. The twenty-year sentence was the presumptive term for the first-degree crime, so State v. Natale, 184 N.J. 458 (2005) was not violated. Moreover, Natale did not apply because this appeal did not fall within its pipeline retroactivity provision. Defendant's sentencing appeal was heard and decided on April 8, 2003, more than two years before Natale was decided on August 2, 2005.

With regard to counsel's assurance of a fifteen-year sentence, defendant was invited to submit a certification or affidavit supporting that position within forty-five days of the order denying PCR. If he failed to do so, then the PCR denial would be affirmed in all respects. Defendant never filed the affidavit or the certification within the forty-five day period and a mandatory order denying this claim for relief with prejudice was entered.

On appeal, defendant raises the following issue for our consideration.

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL, THE MATTER SHOULD BE REMANDED.

It is obvious that the present appeal does not challenge Judge Sarkisian's well reasoned opinion denying the petition. The position now taken is that PCR counsel was ineffective by not producing the evidence that PCR counsel claimed trial counsel should have produced as to defendant's mental status at the time of the offense. Put another way, defendant contends that PCR counsel did not provide documentary evidence and lay or expert testimony to support the factual underpinning for a diminished capacity defense that he applied to defendant's case to argue ineffective assistance of trial counsel.

Judge Sarkisian made it indelibly clear that there was no medical basis for trial counsel to pursue a diminished capacity defense. PCR counsel had investigated defendant's childhood diagnosis of emotional disturbance, numerous placements, and hospitalizations. However, Judge Sarkisian was also aware that the most recent psychological evaluation concluded that defendant did not suffer from gross secondary signs of psychoses. Consequently, there was no supporting documentation to gather when there was an absence of any basis to suggest that defendant suffered from a mental disease or defect. PCR counsel put forward the argument as he was obliged to do. That does not suggest that the argument was meritorious. We reject defendant's contention that PCR counsel provided ineffective representation.

 
The order denying PCR is affirmed.

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

State v. Juinta, 224 N.J. Super. 711 (App. Div. 1988).

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A-0529-08T4

June 17, 2010