STATE OF NEW JERSEY v. KYLE J. WEST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3071-08T43071-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE J. WEST,

Defendant-Appellant.

________________________________

Submitted April 27, 2010 - Decided July 9, 2010

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, No. I-06-03-1162.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Andrew P. Slowinski, Designated

Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Teresa M. Garvey,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm, although for reasons other than those given by the trial court.

On March 29, 2006, defendant entered a negotiated plea of guilty to a one-count accusation charging him with second-degree robbery, N.J.S.A. 2C:15-1. The prosecutor agreed to recommend that the trial court sentence defendant to five years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. On May 12, 2006, the trial court sentenced defendant in accordance with that recommendation.

In July 2007, defendant filed a PCR petition in which he alleged that the offense to which he had pled guilty was not subject to NERA. He also submitted a certification to the effect that he had a history of mental illness, including bipolar disorder. He said that he was not taking his medication at the time of the robbery and was not able to control his actions. He also stated that his attorney who represented him was aware of his mental health issues but did not have him evaluated by a psychiatrist, instead recommending that he plead guilty. He attached a record from Southern State Correctional Facility where he was then incarcerated which noted that he had been diagnosed with bipolar disorder and depression; it also noted, however, that he was in full remission.

PCR counsel submitted a brief on defendant's behalf, arguing that defendant's trial attorney provided ineffective assistance in not having a psychiatric evaluation conducted to determine the viability of possible defenses. PCR counsel also argued that trial counsel was ineffective in not arguing at sentencing for certain mitigating factors. The trial court denied PCR without holding an evidentiary hearing, and this appeal followed.

Defendant raises the following contentions on appeal.

POINT I DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN PLEA NEGOTIATION AND AT SENTENCING, RESULTING IN PREJUDICE TO DEFENDANT IN THE SEVERITY OF HIS SENTENCE. (U.S. CONST., Amend VI, XIV; N.J. CONST. (1947), Art. I, par. 10).

(a) Defense Counsel Was Ineffective in Failing to Obtain an Expert Psychiatric Assessment With Respect to Defendant's Mental Condition and the Effect of That Condition on Defendant's Actions.

(b) Defense Counsel Was Ineffective in Failing to Present and Argue Applicable Mitigating Factors at Sentencing That Would Have Warranted a Reduction in Defendant's Sentence Below the Negotiated Plea.

(c) Defendant Was Prejudiced By Defense Counsel's Ineffective Representation.

(d) The PCR Court Erred in Denying Defendant's Petition.

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

POINT III THE PCR COURT ERRED IN RULING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS PROCEDURALLY BARRED BY RULE 3:22- 2 OR 3:22-3.

POINT IV DEFENDANT'S PCR PETITION SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "'must show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58.

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases;" and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]

Only if a defendant establishes a prima facie case of ineffective assistance of counsel is he entitled to a plenary hearing.

We are satisfied that defendant did not establish such a prima facie case. He submitted no competent evidence that he had, in fact, been diagnosed with bipolar disorder at the time he committed this offense. Nor did he submit any competent evidence as to the effect such a diagnosis would have had upon him and his ability to conform his behavior to the required norms. Indeed, the letters which he submitted in support of his petition from people who had known him for years would appear to refute any claim of disabling mental illness.

We reject as well his claim that his attorney was ineffective when he failed to argue for certain mitigating factors, the existence of which he contends, could have led the trial court to impose a lesser sentence. We note that defendant received the lowest permissible sentence for a crime of the second degree. N.J.S.A. 2C:43-6a(2). The trial court could not have imposed a lower term of incarceration unless it downgraded the offense to one of the third degree, which would require that the trial court be "clearly convinced that the mitigating factors substantially outweigh[ed] the aggravating factors and where the interest of justice" demanded a lower sentencing range. N.J.S.A. 2C:44-1f(2). Even there, the presumption in favor of a custodial term applies. That presumption can be overcome only "in those 'truly extraordinary and unanticipated' cases where the 'human cost' of punishing a particular defendant to deter others from committing his offense would be 'too great.'" State v. Evers, 175 N.J. 355, 389 (2003) (quoting State v. Rivera, 124 N.J. 122, 125 (1991)). Defendant's efforts fall far short of this benchmark.

Defendant's final argument is that the trial court should have granted his PCR petition for the reasons stated in his original pro se brief. In that brief, defendant argued that his crime, robbery in the second degree, did not trigger the sentencing consequences of NERA. Defendant's argument is clearly incorrect. N.J.S.A. 2C:43-7.2d(9) specifies that robbery is an offense for which a sentence comporting with NERA must be imposed.

Finally, we note for the sake of completeness that according to the website maintained by the Department of Corrections, defendant was released from custody while this appeal was pending. We have not dismissed the appeal as moot in light of the parole provisions of NERA. N.J.S.A. 2C:43-7.2c.

The order under review is affirmed.

 

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