STATE OF NEW JERSEY v. MICHAEL MURPHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0370-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MURPHY,

Defendant-Appellant.

__________________________________

November 4, 2011

Submitted October 19, 2011 - Decided

Before Judges Axelrad and Ostrer.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-11-1547.

JosephE. Krakora,Public Defender, attorney for appellant(Karen A.Lodeserto, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Murphy appeals from an order entered April 1, 2009 by Judge James Den Uyl denying defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. He argues that he was denied effective assistance of counsel at sentencing. We affirm.

Defendant was charged in a November 20, 2002 indictment with first-degree murder, N.J.S.A. 2C:11-3a(1), among other charges. As part of a plea agreement, defendant pled guilty on August 25, 2004 to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He admitted that on July 24, 2001, he placed a plastic bag over the head of his female victim, tied it with a cord around her neck with the intention of blocking her breathing, and left her in an unresponsive state, as a result of which she died. Defendant also pled guilty to fourth-degree resisting arrest, and possession of a prohibited device, which were committed when he was arrested three days later, in violation of N.J.S.A. 2C:29-2(a), and N.J.S.A. 2C:39-3(h). The plea agreement authorized the State to recommend a sentence on the aggravated manslaughter charge of eighteen years, of which eighty-five percent would be served before eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(2); and concurrent terms of eighteen months on the fourth-degree charges. Defendant reserved the right to argue for less. The State also agreed to dismiss two third-degree aggravated assault charges, two fourth-degree aggravated assault charges, and one third-degree charge of possession of a weapon.

In the course of the plea hearing, defendant stated that he was thinking clearly and understood the proceedings, notwithstanding that he had not received medication prescribed for him by a psychiatrist. His attorney specifically questioned him to confirm that they had extensive conversations about the plea and defendant was able to think clearly and understand his actions. Defendant also stated that he was satisfied with his attorney, who answered defendant's questions and adequately reviewed the plea agreement.

At defendant's sentencing hearing on October 22, 2004, defense counsel argued that defendant had a lengthy and extensive psychiatric history of compulsive behavior, depression, and bipolar disorder which were untreated when he committed the offense. He urged the court to find as a mitigating factor that there were "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). Counsel acknowledged that defendant's mental illness was more precisely an explanation of defendant's conduct, rather than an excuse or justification.

Counsel also urged the court to find as a mitigating factor that the defendant had led a largely law abiding life. N.J.S.A. 2C:44-1(b)(7). Although not tying it to a statutory factor, counsel also noted that while medicated in custody, defendant had avoided altercations within the institution. He supplied the court with a psychiatric expert's report, as well as letters from defendant's stepmother, and uncle who was a church deacon. He suggested that a 15-year sentence would be appropriate.

The defendant spoke on his own behalf at sentencing. Although noting that he did not receive medication before his court appearance, he stated that he had prepared a written statement in advance. He expressed remorse and sympathy for the victim's family. When asked if he had any additions or corrections to the presentence report, defendant stated, "No, nothing major, sir." He did not deny receiving or reviewing the report.

The prosecutor responded that the court should consider as aggravating factors the risk the defendant would re-offend, the extent of his prior record, and the need to deter. N.J.S.A. 2C:44-1(a)(3), (6), (9). He argued that the court should give little weight to defendant's mental illness because, according to defendant's own expert, defendant had generally been non-compliant with psychiatric treatment and medications, resulting in frequent relapses. The court also heard from the victim's family members.

The court sentenced defendant, in accord with the plea agreement, to eighteen years on the aggravated manslaughter, subject to NERA, concurrent with eighteen month terms on the two fourth-degree charges. The court noted that the defendant knew the victim, according to the undisputed presentence report. She died from strangulation and suffocation in her bedroom, while her child was in the home. The court gave significant weight to the risk of re-offending, which he based in part on defendant's past failure to comply with mental health treatment. N.J.S.A. 2C:44-1(a)(3). The court found that "any weight to be given to mitigating factor number 4 ["substantial factors tending to excuse or justify" defendant's conduct, N.J.S.A. 2C:44-1(b)(4)], would be entirely eradicated by the fact that Mr. Murphy understood he had had treatment available to him, and chose to disregard same." The court gave moderate weight to the aggravating factor of defendant's prior record, implicitly rejecting defendant's claim of living a law-abiding life. N.J.S.A. 2C:44-1(a)(6). The court also found a "strong need to deter this defendant." N.J.S.A. 2C:44-1(1)(9). A judgment of conviction was entered October 22, 2004.

Having considered defendant's appeal on a sentencing calendar pursuant to Rule 2:9-11, we affirmed defendant's conviction and sentence on February 7, 2006, concluding that the sentence was not manifestly excessive, unduly punitive, nor did it constitute an abuse of discretion. We remanded for a correction of the judgment of conviction, which erroneously reflected a finding of aggravating factors not found by the court. The amendment was made February 22, 2006.

The Supreme Court granted defendant's petition for certification on April 28, 2006 and summarily remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). In response, the original sentencing judge reimposed the original sentence on June 16, 2006, noting that he had not relied on the then-applicable presumptive term of twenty years for aggravated manslaughter. N.J.S.A. 2C:44-1(f)(1)(a). Defendant did not file a direct appeal from his resentencing.

Defendant filed his pro se petition for post-conviction relief (PCR) on May 29, 2008. He claimed that his trial attorney was ineffective in representing him at sentencing by failing to argue for a sentence of less than eighteen years. He also complained that his attorney "failed to advise the court of the medications defendant was taking during the course of all proceedings, and the effect the medication had on the defendant at the time of his plea." Defendant also noted that he had not received his medication at the time of his plea, but he did not challenge the plea; his petition addressed only the sentence. In a supplemental certification, he complained his attorney did not meet with him or review his presentence report before sentencing; nor did he acknowledge the presence of defendant's family members and request an opportunity for them to speak.

On April 1, 2009, Judge Den Uyl denied the petition without an evidentiary hearing. In a thorough oral opinion, the court applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. A petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) counsel's performance created a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 688, 689, 694, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

The court found that the allegations of ineffective assistance were unsupported by the record of the plea and sentencing hearings. There was no showing that defense counsel was deficient. Contrary to defendant's claims, the record reflected that defendant did review his presentence report. His attorney vigorously argued for a sentence less than the maximum eighteen years allowed under the plea agreement, in part by arguing that defendant's mental illness was a mitigating factor and he had lived a law-abiding life for a significant period of time. The court also rejected defendant's claim of deficient performance by counsel regarding the fact that defendant was unmedicated at his plea and sentencing hearings, noting that defendant assured the court he was thinking clearly at his plea hearing, and he spoke coherently at his sentencing hearing, without any indication of a failure to understand or think rationally.

The court also held that even if one assumed, for argument's sake, that there was deficient performance by counsel, defendant had failed to make a prima facie showing of prejudice. The court held that defendant made only bald assertions that the result would have been different had his attorney reviewed the presentence report with him in greater depth, made more extensive arguments at sentencing, addressed his lack of medication, or sought oral statements from defendant's family. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (stating that a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999).

Defendant appeals from the denial of his petition and raises the following points:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE DURING SENTENCING.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.

C. CUMULATIVE ERROR.

We have considered defendant's arguments in light of our review of the record. We reject them, and affirm the denial of his petition for the reasons set forth in Judge Den Uyl's cogent oral opinion.

A