STATE OF NEW JERSEY v. ROBIN STREATER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-08T44150-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBIN STREATER,

Defendant-Appellant.

________________________________________

 

Submitted: June 29, 2010 - Decided:

Before Judges Stern and Skillman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 05-01-0086.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Assistant Prosecutor, of counsel and of the brief).

PER CURIAM

Defendant pled guilty to aggravated manslaughter, as amended from the charge of murder, on June 6, 2005. She was sentenced, pursuant to a negotiated disposition, to a term of 17 years in the custody of the Commissioner of Corrections, with 85% thereof to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Other offenses were dismissed as part of the negotiated disposition. Defendant's sentence was affirmed on the Oral Argument Sentence calendar by an order entered on September 19, 2006, and certification was denied. State v. Streater, 189 N.J. 429 (2007).

Defendant now appeals from the denial of her petition for post conviction relief. She contends:

POINT ONE

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

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 HER SENTENCE HEARING.

POINT THREE

THE INCLUSION OF INVESTIGATION REPORTS GENERATED BY THE STATE IN DEFENDANT'S PRESENTENCE REPORT WITHOUT DEFENDANT'S CONSENT VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY, AND STATE V. NATALE, AND REQUIRES A REMAND FOR A NEW SENTENCE HEARING.

POINT FOUR

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

We affirm the denial of PCR, and believe that only the following comments are warranted in a written opinion. Rule 2:11-3(e)(2).

We agree with defendant that the fact the issue of excessive sentence was decided against her on the direct appeal does not preclude a PCR based on the claim of ineffective assistance of counsel at the sentencing proceeding. The ineffectiveness claim is based on the federal and state constitutional right to the effective assistance of counsel, U.S. Const. amend. VI; N.J.S.A Const. (1947) art. I, par. 10, as opposed to the mere excessiveness of the sentence. The same is also true notwithstanding the claim of excessive sentence is itself not cognizable on PCR. State v. Ervin, 241 N.J. Super. 458, 471-72 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990); State v. Flores, 228 N.J. Super. 586, (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). However, we are satisfied that even if defense counsel had argued mitigating factors, or advanced other arguments at sentencing, as defendant claims he should have done, the result would have been the same.

The negotiated plea included a downgrade of the murder count to aggravated manslaughter and a seventeen year sentence subject to the No Early Release Act, to be served concurrently with a sentence to be imposed on a violation of probation. Pursuant to the negotiated disposition, the other charges in the indictment were dismissed and defendant waived her right to appeal. The negotiated sentence was imposed.

Defendant points to nothing in the record which warrants an evidentiary hearing based on the fact defense counsel failed to present some information that might have reduced the sentence. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). A negotiated sentence is presumably reasonable, see State v. Sainz, 107 N.J. 283, 294 (1987), and we are satisfied, based on what is presented in the record before us, that no matter what more defense counsel may have said, the same negotiated sentence would have been imposed and, based on our scope of review, would have been affirmed. The negotiated sentence was below the then-presumptive term for aggravated manslaughter. See N.J.S.A. 2C:11-4c, 2C:44-1f(a). As we said at the oral argument on the direct appeal:

We're satisfied that even if it would have been appropriate for the trial court to have identified provocation as a mitigating sentencing factor, that there are such compelling aggravating factors in this case that the Court could not conclude that a 20-year sentence which [was] the presumptive, the old presumptive now midrange of aggravating manslaughter would constitute an abuse of discretion.

 
Affirmed.

A sentence may not appear excessive because counsel has not properly made a record to support a claim that the sentence is excessive.

The waiver did not preclude the appeal, and the prosecutor did not withdraw the plea. See Rule 3:9-3(d): State v Gibson, 68 N.J. 499 (1975).

While defendant can move to have removed from the pre-sentence report any fact in contest which might adversely affect her classification or parole status, the pre-sentence report was probably not contested at sentencing as it would have made no difference with respect to the negotiated sentence imposed. See State v Kunz, 55 N.J. 128 (1969). The Natale argument has no impact given this plea and sentence below the then-presumptive term. State v. Natale, 184 N.J. 458 (2005).

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A-4150-08T4

July 26, 2010