STATE OF NEW JERSEY v. EDDIE D. BUTLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5187-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE D. BUTLER,

Defendant-Appellant.

___________________________

Submitted January 26, 2011 Decided May 3, 2011

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment

No. 04-03-1148.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth Harrigan, Designated Counsel,

of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Patrick D. Isbill,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Eddie Butler appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.

On August 3, 2006, defendant pled guilty pursuant to a negotiated plea agreement to first degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1).1 On May 3, 2003,2 at approximately 3:30 a.m., defendant shot and killed a man named Kenneth Talley, Jr., in the City of Camden. Defendant and the victim were attending a party where alcohol was dispensed. According to the statement defendant gave at the plea hearing, while in the course of a verbal dispute with Talley, defendant raised his handgun and shot in the direction where Talley was standing. The bullet struck and killed the victim.

On September 22, 2006,3 the court sentenced defendant to a term of eighteen years, with an eighty-five percent period of parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties. Defendant did not file a direct appeal challenging either the legal basis of the plea or the propriety of the sentence imposed by the court.

On August 6, 2007, defendant filed a pro se PCR petition contending that his trial counsel was ineffective because, according to defendant's reading of State v. Manzie, 168 N.J. 113 (2001), the court should not have applied NERA to the crime of aggravated manslaughter. Court-assigned counsel amended the PCR petition by abandoning defendant's original grounds based on Manzie and arguing that trial counsel was ineffective when he failed to investigate the defense of intoxication and self-defense as allegedly "requested" by defendant prior to entering his plea of guilty. In his certification in support of these claims, defendant stated:

I shot at the victim in this case because I believed he was reaching for a gun after he threatened me. Furthermore, I was under the influence of alcohol and my mental capacity was diminished.

I told my lawyer that based on this, I wanted to go to trial but may lawyer told me that pleading guilty was my best choice. I don't believe my lawyer conducted any investigation into my case or investigated my possible defenses.

In his brief before the court, PCR counsel also argued that trial counsel was ineffective when he failed to argue in favor of the court finding mitigating factor (3), that defendant acted under a strong provocation, N.J.S.A. 2C:44-1(b)(3); mitigating factor (4), that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); mitigating factor (5), that the victim's conduct induced or facilitated the commission of the crime, N.J.S.A. 2C:44-1(b)(5); mitigating factor (8), that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); mitigating factor (11), that defendant's imprisonment would entail excessive hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11); and mitigating factor (12), defendant's cooperation with law enforcement. On the other side of the analytic ledger, PCR counsel argued that trial counsel should have argued against the sentencing judge's "overvaluing" of aggravating factor (3), the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3).

Defendant's PCR petition came for adjudication on July 11, 2008, before Judge Thomas A. Brown, Jr., the same judge who reviewed and accepted defendant's guilty plea and thereafter sentenced him. After hearing the argument of counsel, Judge Brown found defendant's petition procedurally barred under Rule 3:22-3, which provides that a PCR petition is not "a substitute for appeal from conviction."

Despite this procedural impediment, Judge Brown addressed the merits of defendant's arguments. With respect to defendant's claims concerning trial counsel's failure to investigate an intoxication defense or self-defense, Judge Brown noted:

The court finds the petitioner's certification provides only speculation as to the investigative efforts of counsel at the time of the negotiated plea and sentencing. No evidence has been presented to suggest that counsel did not adequately investigate this matter. And no information has been provided to show what additional evidence, if any, would have made -- been uncovered by a more thorough investigation.

On the question of the reasonableness of the sentence imposed by the court, Judge Brown began his analysis by noting the sharp contrast between defendant's argument in his PCR petition and the sentiments defendant expressed at the sentencing hearing. Specifically, defendant asked the court at the sentencing hearing to ignore the eighteen-year limitation imposed by the plea agreement because eighteen years was "too much of a light sentence" for taking a person's life. Indeed, defendant stated that he would welcome the death penalty because it would "make everybody happy," including himself. Although these statements were made by defendant in an emotional moment of self-reflection and remorse, Judge Brown nevertheless found them indicative of defendant's acknowledgment of the gravity of the crime he committed and the need that sentence imposed by the court serve as a general deterrence to all those who may be capable of committing a similar offense.

In rejecting defendant's claims of ineffectiveness against his trial counsel, Judge Brown also noted the strength of the State's case against defendant, which included a "roomful of eyewitnesses who knew [defendant] personally," defendant's subsequent flight from the scene of the crime, attempts at concealment from arrest, and his "full confession," which the court found admissible after denying defendant's Miranda4 motion to suppress.

Despite what he characterized as the State's "very strong case of purposeful knowing murder," Judge Brown emphasized that trial counsel

negotiate[d] . . . as favorable a sentence as possible. Counsel successfully convinced the state to downgrade the murder charge to only an aggravated manslaughter charge. Further, counsel convinced the state to recommend the sentence below the mid-range for aggravated manslaughter.

Finally, Judge Brown also found baseless defendant's claims that trial counsel should have argued against the court "overvaluing" the aggravating factors and should have argued in favor of finding certain mitigating factors. As noted by the court at the sentencing hearing, defendant, who was twenty-four years old at the time,5 had sixteen adjudications of delinquency as a minor, through which he received multiple terms of probations and detentions in a juvenile facility, and one municipal court conviction for simple assault. Given this record, Judge Brown concluded that defendant had failed to establish a prima facie case of ineffective assistance of trial counsel, obviating the need for an evidentiary hearing. State v. Preciose, 129 N.J. 451 (1992).

Defendant now appeals, raising the following arguments:

POINT I

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT MITIGATING FACTORS AND DID NOT EFFECTIVELY ARGUE AGAINST AGGRAVATING FACTORS AT DEFENDANT'S SENTENCING

B. TRIAL COUNSEL FAILED TO INVESTIGATE THE POTENTIAL DEFENSES OF DIMINISHED CAPACITY, INTOXICATION AND SELF DEFENSE PRIOR TO ENTERING A PLEA

POINT II

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIMS AT THE POST CONVICTION RELIEF HEARING THAT HIS PLEA SHOULD BE WITHDRAWN

POINT III

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED

We reject these arguments and affirm substantially for the reasons expressed by Judge Brown in his well-reasoned oral opinion delivered from the bench on July 11, 2008. We add only the following brief comments.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

As correctly found by Judge Brown, defendant did not produce sufficient evidence to establish that trial counsel's performance in connection with negotiating the plea agreement and thereafter advising defendant to accept it fell below the standard of competence applicable to a criminal defense attorney in this State. Thus, defendant did not satisfy the first prong under Strickland/Fritz.

1 Defendant was indicted by a Camden County Grand Jury and charged with murder, N.J.S.A. 2C:11-3a(1) and (2); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and two counts of third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). As part of the plea agreement, the State agreed to amend the charge of murder to aggravated manslaughter and dismissed the remaining charges.

2

Although the indictment reflects that the homicide occurred in 2003, defense counsel erroneously identified the year as 2002 when he questioned defendant to elicit a factual basis for his guilty plea.

3

On this same date defendant pled guilty to an unrelated charge of simple assault, N.J.S.A. 2C:12-a, a disorderly persons offense for which the court sentenced him to a term of six months, to run concurrent with the sentence imposed on the aggravated manslaughter charge.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 Although this is defendant's first indictable offense, thus creating the impression that he lived a law abiding life for a substantial period of time after reaching the age of majority, it must noted that defendant received 961 days of jail time credits against the sentence imposed for this offense. Stated differently, defendant committed this crime at age twenty and has not been in society since the date of his arrest on February 4, 2004.