STATE OF NEW JERSEY v. KIMBERLY MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0806-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY MITCHELL,

Defendant-Appellant.

________________________________________________________________

November 1, 2011

Submitted September 27, 2011 - Decided

Before Judges Carchman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0183.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kimberly Mitchell entered a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and was sentenced, consistent with the plea agreement, to imprisonment for fifteen years, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. In accordance with the plea agreement, the judge dismissed three counts of second-degree aggravated arson as well as one count of first-degree felony murder. Defendant appealed her sentence, and we affirmed. Defendant, thereafter, filed a Petition for Post-Conviction Relief (PCR),1 which was denied without a plenary hearing. Defendant appeals, and we affirm.

The facts are simply stated. In August 2003, following an altercation with a third person while at 639 Sixth Avenue, Plainfield, defendant returned to the premises and started to destroy the person's bedroom. Defendant then started a fire in a clothes hamper, resulting in the death of a resident of the apartment. Defendant was subsequently charged with the previously noted offenses and consistent with a negotiated plea agreement, entered a plea of guilty to the charge of aggravated manslaughter.

When she entered the plea, defendant indicated that she had consumed a controlled dangerous substance, PCP, before the incident. During her voir dire at the plea, she admitted that she set the fire, knew that the victim was in the building and that the fire could spread. She indicated that, at the time of the incident, "she did not care."

The Presentence Report, submitted to the State, defendant and the judge, stated that:

At the time of this Presentence report [defendant] informed this writer that she was in good physical health. [Defendant] also indicated that she has been receiving psychiatric treatment at various institutions, including Elizabeth General Hospital, UMDNJ, and Mulenburg [sic] Hospital. It should also be noted that defendant informed this writer that she has a history of substance abuse, which included the use of alcohol, marijuana and phencyclidine. In fact [defendant] informed this writer that she was under the influence of phencyclidine when she committed the instant offense.

Prior to sentencing, defendant had previously provided the State with a report authored by Kenneth L. McNiel, Ph.D., whom defendant retained to perform a psychological examination of her. That examination concluded, among other things, that defendant suffered from bipolar disorder as well as substance abuse. At sentencing, counsel made brief reference to defendant's psychiatric history. The judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), and nine, N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law), as well as mitigating factor four, N.J.S.A. 2C:44-1b(4) (there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense), and he concluded that the aggravating factors outweighed the mitigating factors. He then imposed the agreed upon sentence at issue here.

In her PCR, defendant raised the following issues:

I. TRIAL COUNSEL WAS INEFFECTIVE WHEN SHE FAILED TO PRESENT THE TRIAL COURT, PROSECUTOR, AND UNION COUNTY PROBATION DEPARTMENT WITH DOCUMENTATION REGARDING PETITIONER'S EXTENSIVE PSYCHIATRIC HISTORY.

II. AS A RESULT OF TRIAL COUNSEL'S INEFFECTIVE REPRESENTATION, THE SENTENCING COURT WAS NOT PRESENTED WITH MITIGATING FACTORS PURSUANT TO N.J.S.A. 2C:44-1.

III. THE COURT WAS PRESENTED WITH AN INADEQUATE PRESENTENCE REPORT.

In a thorough and thoughtful opinion, Judge Span noted that defendant did not seek to set aside her plea but only to reduce her sentence. The judge observed that both defendant and the State had Dr. McNiel's report, and she concluded from the submissions that "there also is a very strong inference that this had to be discussed with the sentencing judge, Judge Triarsi, before or he would -- never would have accepted this plea. I think this had to be very good strategy on -- on [defense counsel's] part." She further noted that we had affirmed the sentence. Judge Span then denied the PCR.

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION THAT SHE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL

PRINCIPLES REGARDING CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL,

EVIDENTIARY HEARINGS AND PETITIONS

FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL FAILED TO

ADEQUATELY REPRESENT THE

DEFENDANT'S INTEREST AT

SENTENCING BY FAILING TO BRING ALL

RELEVANT INFORMATION AND

DOCUMENTATION TO THE ATTENTION OF

THE TRIAL COURT DEALING WITH HER

SIGNIFICANT AND LONG-STANDING

PSYCHIATRIC HISTORY, BY FAILING TO

DEMONSTRATE THE APPLICABILITY

OF VARIOUS MITIGATING FACTORS, AND

BY FAILING TO EMPHASIZE THE

INAPPLICABILITY OF AT LEAST ONE

AGGRAVATING FACTOR FOUND BY THE

TRIAL COURT TO APPLY.

We have carefully reviewed the record and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2).

In affirming the Law Division's denial of the PCR, we make two brief observations.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). This two-part test requires defendant to demonstrate that her attorney's performance was deficient, and there existed a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

In State v. Fritz, 105 N.J. 42, 58 (1987), the New Jersey Supreme Court adopted the Strickland test as consistent with the state constitutional guarantee of effective assistance of counsel. Simply put, a criminal defendant is entitled to the assistance of reasonably competent counsel, and that constitutional right is violated if counsel's performance is so deficient as to create a reasonable probability that the deficiencies materially contribute to the defendant's conviction. Fritz, supra, 105 N.J. at 58. See also State v. Echols, 199 N.J. 344, 357-58 (2009); State v. Castagna, 187 N.J. 293, 313-15 (2006) (reiterating the two-prong standard enunciated in Strickland and followed in Fritz).

The plea agreement here resulted in the dismissal of more serious offenses that would have exposed defendant to a significant sentence far in excess of the sentence actually imposed. The State, defendant and the judge were aware of defendant's psychiatric issues, and we do not perceive that, under the circumstances, a lower sentence would have been imposed. The second prong of Strickland was not established.

There is an additional consideration. The sentence arose from a plea agreement entered into, with full knowledge, by the State and defendant.

In an appeal from a sentence imposed in accordance with a plea bargain, the sentence "should be given great respect, since a 'presumption of reasonableness . . . attaches to sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)); see also In re Commitment of P.C., 349 N.J. Super. 569, 578 (App. Div. 2002) ("courts generally defer to the reasonableness of negotiated criminal dispositions"). As the Supreme Court remarked in the pre-code case, State v. Spinks, 66 N.J. 568 (1975), our review of such a sentence should not only consider each and every term of the bargain, including the reduction or dismissal of charges, but also recognize that the defendant has freely agreed to the imposition of such sentence as part of the plea negotiations. Id. at 573.

These principles apply with significant force under the facts presented here. This was a favorable plea agreement and sentence. We find no basis for our intervention.

Affirmed.

1 While defendant's appeal from the sentence was pending, defendant filed a pro se PCR. That PCR was dismissed without prejudice, and defendant filed an amended PCR following our disposition of the direct appeal.