STATE OF NEW JERSEY v. RICHARD D. OWENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2922-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD D. OWENS, a/k/a/

RICK OWENS, a/k/a RICKY OWENS,

Defendant-Appellant.

_______________________________________

November 17, 2010

Submitted October 26, 2010 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-09-01635.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Meghan M. Clark, Legal Assistant, on the brief).

PER CURIAM

Defendant Richard D. Owens appeals from an order entered by the Law Division on March 28, 2008, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Indictment No. 01-09-1635 with first degree murder, contrary to N.J.S.A. 2C:11-3 (count one); and third degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count two). On August 2, 2002, defendant pled guilty to count one, which was amended to charge defendant with first degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1). Defendant also pled guilty to count two. The State agreed to recommend a twenty-five year sentence, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, defendant stated that on June 19, 2001, he was living in the home of Naomi Walker (Naomi) in Asbury Park. Naomi is the mother of Robin Walker (Robin), who had been at one time defendant's girlfriend. Defendant and Robin lived together at various times over the years. Robin had been incarcerated and defendant continued to "support" her in some fashion while she was in jail. Defendant said that he wanted to continue his relationship with her.

A day or two before June 19th, Robin came home from an inpatient drug treatment program on a weekend pass. According to defendant, Robin did not want to continue their relationship. On June 19th, defendant woke up at around 4:30 or 5:00 a.m. to get ready for work. Robin was sleeping in a room with her mother, and defendant tried to wake Robin up. She became upset and started screaming.

Robin accused defendant of trying to hurt her. Naomi awakened, told defendant to leave the room, and went to the bathroom. Defendant and Robin continued to argue. Defendant began to strike Robin with his fists. Naomi returned from the bathroom and left the apartment. After Naomi departed, defendant took a knife from the kitchen and struck Robin with it.

It appears from the record that defendant stabbed Robin twenty times. Defendant stated that, when he stabbed Robin, he did not care whether the blows would cause her death. He acknowledged that that his actions showed extreme indifference to human life. Defendant said that he understood that his actions caused Robin's death.

Defendant was sentenced on October 11, 2002. The trial court merged count two with count one, and sentenced defendant on count one to twenty-five years of incarceration, with a period of parole ineligibility as prescribed by NERA. The court also imposed appropriate monetary penalties.

Defendant filed a notice of appeal and challenged his sentence. The appeal was heard on the court's excessive sentence calendar. Defendant's sentence was affirmed. State v. Owens, No. A-4044-02 (July 10, 2003). Defendant thereafter sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Owens, 178 N.J. 374 (2003).

On July 30, 2007, defendant filed a PCR petition in the Law Division, and PCR counsel was assigned to represent defendant. Defendant alleged that he had been denied the effective assistance of counsel at sentencing. He claimed that his trial attorney was ineffective because he failed to argue for a sentence of shorter duration than the maximum permitted by the plea agreement.

The PCR court found that defendant was procedurally barred from pursuing these claims because his sentence had been affirmed on appeal. The court found, however, that even if the claims were not barred, they were without merit. The court pointed out that defendant pled guilty to aggravated manslaughter, knowing that he was avoiding "what was probably a certain murder conviction[.]" The court stated that, when he entered his plea, defendant said that he had been satisfied with trial counsel's representation of him.

The PCR court also pointed out that trial counsel had negotiated a substantial reduction in defendant's exposure to incarceration. The court noted that the maximum sentence for first degree aggravated manslaughter is thirty years and defendant had been sentenced in accordance with the plea to a twenty-five year term, subject to NERA.

The PCR court stated that trial counsel was not deficient in failing to seek a more lenient sentence than the maximum permitted by the plea agreement. The court observed that, at sentencing, it found no mitigating factors but it was aware of all the relevant information from the pre-sentence report. The court stated that it saw no reason to deviate from the plea agreement, and it would not have imposed a more lenient sentence even if trial counsel had handled the matter differently.

The court entered an order dated March 28, 2008, denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:

POINT ONE

THE APPELLATE DIVISION DID NOT RULE ON DEFENDANT'S CLAIM HE FAILED TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS SENTENCING HEARING, THUS THIS ARGUMENT IS NOT BARRED BY R. 3:22- 3 OR 3:22-4

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCE HEARING AS A RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT HIS SENTENCE HEARING

POINT THREE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING

We see no reason to address the issue raised in Point One because we are convinced that the trial court correctly determined that defendant was not denied the effective assistance of counsel and an evidentiary hearing was not required on the petition.

Here, the PCR court correctly considered defendant's claim of ineffective assistance of counsel under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As the PCR court recognized, in order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted these standards for evaluating ineffective-assistance-of-counsel claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant maintains that his trial attorney erred by failing to seek a more lenient sentence that the twenty-five years of incarceration permitted by the plea agreement. He says that trial counsel should have asked the court to consider his twelve years of military service, his employment history and the role that his intoxication allegedly played in the commission of the offense. Defendant contends that, had these issues been presented at sentencing, counsel "could have been successful in convincing the court to impose a sentence less than the maximum under the plea agreement."

Even if we agreed that defense counsel was deficient in failing to seek a more lenient sentence than the maximum permitted by the plea agreement, we are convinced that defendant was not prejudiced by such an error. The PCR court stated that, if counsel had sought leniency on the basis of defendant's military record and other factors, the result here would have been the same because the court was not convinced that there was any reason to impose a sentence of shorter duration than the maximum of twenty-five years permitted by the plea agreement.

We are satisfied that the record fully supports the court's findings. We are also satisfied that because defendant did not establish a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).