STATE OF NEW JERSEY v. ANTWAN SMITH a/k/a TYSON NEWMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6149-08T46149-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTWAN SMITH a/k/a TYSON

NEWMAN,

Defendant-Appellant.

____________________________

Argued June 16, 2010 - Decided July 26, 2010

Before Judges Chambers and Kestin.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-07-2603.

Kimmo Hussain Abbasi, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Abbasi, of counsel and on the brief).

LeeAnn Cunningham, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Cunningham, of counsel and on the brief).

PER CURIAM

Defendant Antwan Smith appeals from the order of February 18, 2009, denying his petition for post-conviction relief. On September 8, 2004, pursuant to a plea agreement, defendant pled guilty to first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); three counts of first degree robbery, N.J.S.A. 2C:15-1; first degree carjacking, N.J.S.A. 2C:15-2; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; second degree eluding, N.J.S.A. 2C:29-2(b); and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(3).

When pleading guilty, defendant explained that on November 14, 2002, he robbed four individuals at gunpoint. From one victim, he took a Lexus. He drove off in the stolen vehicle, and during a high speed chase by the police, he went the wrong way down a one-way street and collided with another vehicle. The driver of that vehicle died from injuries sustained in the accident, and debris from the collision injured a pedestrian in the area.

Defendant received an aggregate sentence of twenty years imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a fifty percent period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c) and (d); and five years of parole supervision upon release. The trial court also imposed the requisite financial penalties and assessments. On appeal, the case was remanded for resentencing under State v. Natale, 184 N.J. 458 (2005). The trial court reimposed the original sentence, and we affirmed that sentence by order dated November 15, 2007. State v. Smith, No. 4976-04 (App. Div. Nov. 15, 2007).

Defendant thereafter filed a timely petition for post-conviction relief. He contended that defense counsel was ineffective for failing to determine whether defendant's mental condition might rise to the level of a defense or affect his competency to understand the charges and knowingly and voluntarily plead guilty. He contended that he had been on medication since childhood, but was not on medication at the time he committed the offenses. At the post-conviction relief hearing, defense counsel stated that defendant maintains he was diagnosed with chronic paranoid schizophrenia and had been placed on medication.

The trial court denied the post-conviction relief petition in an oral decision placed on the record and in a written decision dated February 18, 2009. In doing so, the trial court noted in its written decision the lack of specificity and factual support for defendant's contentions stating:

Petitioner raises vague claims that "neither of the defendant's assigned counsel made any effort to determine whether his mental condition might rise to the level of a defense." However, Petitioner affirmed in Court that he committed the offenses he was being charged with and that he was pleading guilty because he was in fact guilty. During this colloquy with the Court, Petitioner affirmed that he was not under the influence of drugs, alcohol, or medication. Now, Petitioner presents vague assertions that fail to provide the court with a description of the medications Petitioner was taking, Petitioner's medical history and the effects of not taking such medication. Petitioner has not presented to the court the necessary evidence and factual assertions to prevail under the rule.

[(citations omitted).]

In conducting its analysis under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the trial court wrote:

Petitioner also fails to meet the second prong enunciated in Strickland. Petitioner alleges that "there was no effort made by [] counsel at either his original sentencing or his resentencing to raise the issue of his mental condition as a mitigating factor in sentencing." However, in his motion for post conviction relief, Petitioner does not provide this court with any information regarding the medication that Petitioner is taking nor does Petitioner provide the court with any medical records to support his assertions. Petitioner presents this court with vague and unsupported accusations and this is not sufficient to meet the threshold for ineffective assistance of counsel claims.

[(citation omitted) (alteration in original).]

Defendant now appeals this decision, raising the following points.

POINT I

THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A NEW TRIAL AS CUMULATIVE TRIAL ERRORS AND OMISSIONS DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AS DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

ALL ISSUES RAISED IN DEFENDANT'S PRO-SE PETITION FOR POST CONVICTION RELIEF ARE HEREIN INCORPORATED BY REFERENCE.

After a detailed review of the record, arguments of counsel, and the governing law, we affirm substantially for the reasons set forth by Judge Vena in his oral and written decisions of February 18, 2009.

Affirmed.

 

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