STATE OF NEW JERSEY v. HENRY L. BLACKWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5811-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY L. BLACKWELL,

Defendant-Appellant.

_______________________________________

December 20, 2010

Submitted November 30, 2010 Decided

Before Judges Skillman and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-02-87 and 03-09-553.

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

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (Nicole McGrath, Assistant Prosecutor, of counsel and on the brief).

Defendant filed a pro se supplemental brief.

PER CURIAM

Defendant Henry L. Blackwell appeals from an order entered by the Law Division on August 28, 2008, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Somerset County Indictment No. 03-09-553 with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1). Defendant also was charged under Somerset County Indictment No. 04-02-87 with two counts of armed robbery, contrary to N.J.S.A. 2C:15-1(a)(2). On October 18, 2004, defendant pled guilty to the charges in both indictments and on May 13, 2005, the court imposed an aggregate sentence of fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant filed an appeal from the judgment of conviction, which was heard on our excess sentence calendar. We entered an order dated February 7, 2006, affirming the trial court's judgment. On July 17, 2006, defendant filed a pro se PCR petition in the Law Division. PCR counsel was assigned for defendant and an amended PCR petition was filed on July 25, 2007. Defendant alleged that he had been denied the effective assistance of counsel because his trial attorney did not pursue a diminished capacity defense and failed to seek findings on certain mitigating factors at sentencing.

On August 28, 2008, Judge Julie M. Marino filed a written opinion and order denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Counsel and defendant's expert were ineffective since they failed to prepare a diminished capacity defense.

B. Counsel failed to provide effective assistance during sentencing.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT III

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

In addition, defendant has filed a supplemental pro se brief in which he raises the following argument:

THIS MATTER SHOULD BE REMANDED TO THE LAW DIVISION TO CONDUCT AN EVIDENTIARY HEARING ON THE SECOND PRONG OF THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, i.e., THE EFFECT OF THE OUTCOME OF THE MITIGATING FACTORS WHICH WOULD HAVE RESULTED IN A SENTENCE OF ONE DEGREE LOWER.

We are satisfied that these arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We accordingly affirm the order denying PCR substantially for the reasons stated by Judge Marino in the written opinion filed on August 28, 2008. We add the following comments.

To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for consideration of ineffective-assistance-of-counsel claims raised under our State Constitution, State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant 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, the defendant must show that his attorney's errors prejudiced his defense. Ibid. To do so, the defendant is required to establish "that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant alleges that he was denied the effective assistance of counsel because his trial attorney failed to adequately pursue a diminished mental capacity defense. The record shows that defendant's attorney retained Dr. Daniel P. Greenfield (Greenfield), a forensic psychiatrist, who examined defendant, reviewed certain records and issued a report dated October 1, 2004, in which he diagnosed defendant as suffering from chronic schizophrenia, in partial institutional remission, and polysubstance abuse, in institutional remission. Greenfield opined, within a reasonable degree of medical probability, that the evidence would not support the assertion by defendant of a legal insanity, diminished capacity or intoxication defense.

In support of his PCR petition, defendant submitted a report from Joel E. Morgan (Morgan), a clinical neuropsychologist, who rendered a report dated May 3, 2007, in which he observed that Greenfield may not have reviewed all of defendant's available medical history when he issued his report. Morgan stated that, based on his examination of defendant, the results of various tests and his review of various records, defendant was suffering from schizophrenia, chronic paranoid type; chronic substance and polysubstance abuse; and dementia, secondary to schizophrenia, head trauma, polysubstance abuse and alcoholism. Morgan opined "within a reasonable degree of scientific neuropsychological [and] psychological certainty" that during the time he committed the armed robberies, defendant suffered from "significant diminished capacity[.]"

The PCR court afforded defendant the opportunity to provide Greenfield with copies of any pre-incident records that had not been made available to him prior to issuance of his October 1, 2004 report. Greenfield reviewed those records and concluded that the new information had no impact upon his initial opinion.

The PCR court found that Greenfield's handling of the matter could not be characterized as deficient simply because his opinion differed from Morgan's. We agree. We are satisfied that the PCR court correctly found that defendant's attorney was not deficient because he relied upon Greenfield's report, chose not to seek a second opinion on defendant's mental state at the time he committed the robberies and did not pursue a diminished capacity defense.

Defendant also argues that he was denied the effective assistance of counsel at sentencing. The trial court found aggravating factors under N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found a mitigating factor under N.J.S.A. 2C:44-1(b)(12) (defendant's willingness to cooperate with law enforcement authorities). The court imposed concurrent fifteen-year terms for the two robberies and a concurrent four-year term for the possession of CDS.

Defendant argues that his trial counsel erred by failing to seek findings by the sentencing court on mitigating factors under N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm); N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); N.J.S.A. 2C:44-1(b)(4) (there were substantial grounds tending to excuse or justify the defendant's conduct, although failing to establish a defense); and N.J.S.A. 2C:44-1(b)(7) (defendant led a law abiding life for a substantial period of time before he committed the present offense).

However, the record shows that at sentencing, defendant's attorney argued that defendant did not intend to hurt anyone when he committed the robberies. Counsel asserted that "the fact that somebody could have but did not get hurt is a significant [fact] that brings [this matter] down to the lower end of the [sentencing] spectrum." In addition, defendant's attorney said that defendant was a chronic schizophrenic and urged the court to consider defendant's mental illness as "the main mitigating factor" in his sentence. Thus, counsel did seek findings by the sentencing court on mitigating factors one, two and four.

Defense counsel also pointed out that defendant had only one prior indictable conviction in 1989, which was for possession of CDS with intent to distribute. Counsel argued that, while defendant had an extensive criminal history, it looked "worse than it is" because it only involved what counsel characterized as "petty property crimes[.]" Although counsel did not explicitly seek a finding on mitigating factor seven, it is clear that the record would not have supported such a finding even if it had been requested.

Affirmed.