STATE OF NEW JERSEY v. GEORGE KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2665-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE KING,

Defendant-Appellant.

_________________________________________________________

March 23, 2012

Submitted March 13, 2012 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2172.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Carolyn A.Murray, Acting Essex CountyPros-ecutor, attorneyfor respondent(John E. Anderson,Special DeputyAttorney Gen-eral/ActingAssistant Prosecutor,on thebrief).

PER CURIAM

In this appeal, defendant argues that his petition for post-conviction relief -- in which he alleged his trial attorney was ineffective because he failed to pursue an insanity or diminished capacity defense -- was erroneously denied. We find no merit in defendant's arguments and affirm.

Defendant was charged in this matter with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); and third-degree resisting arrest, N.J.S.A. 2C:29-2. On March 24, 2004, defendant pled guilty to aggravated manslaughter, possession of a weapon for an unlawful purpose, and resisting arrest. As summarized by defendant in his appeal brief, defendant admitted that, on March 14, 2003, he:

was watching television and then decided to stab [Ms. Ryan] who lived on the eighth floor of his apartment building. Defendant had contemplated killing [Ms. Ryan] for several days. Defendant retrieved a knife from the kitchen and left the apartment. Defendant stabbed himself in the stomach to "see what it feels like." Defendant took the elevator to the eighth floor where he found the victim in the hallway. He grabbed her, stabbed her numerous times and left her lying near the door of her apartment. Defendant exited the building and observed two police vehicles. He hid the knife in a parking lot near a local bus company. Then defendant observed a girl that he intended to choke. The police confronted defendant and he struggled with the officers in an attempt to escape.

On August 4, 2004, defendant was sentenced to a twenty-five year prison term subject to an eighty-five percent period of parole ineligibility; a concurrent five-year prison term was imposed for resisting arrest, and the other conviction merged for sentencing purposes.

At the time, defendant was under indictment in Middlesex County for an unrelated murder for which he potentially faced capital punishment. On January 4, 2007, defendant was sentenced, pursuant to a plea agreement, to a thirty-eight year prison term, which was ordered to run concurrently with the prison term imposed in this matter.

Prior to the guilty plea in this matter, Dr. Roger M. Harris conducted a psychiatric evaluation of defendant. Dr. Harris diagnosed defendant as suffering from a number of disorders, including schizoaffective disorder, bipolar type. Dr. Harris noted that defendant had been treated for psychiatric conditions since he was nine years old. Defendant reported to Dr. Harris that he heard voices telling him to kill but that medication had provided some relief for this and, at the time of the assault on Ms. Ryan, defendant had been taking his medications.

After receiving this report, as well as a supplemental report that opined defendant had made false confessions about other murders, defense counsel negotiated a plea agreement in this matter. Following a thorough voir dire, the trial judge determined that defendant's guilty plea was freely, knowingly and voluntarily entered.

Defendant filed a PCR petition a few months more than five years from entry of the judgment of conviction. In the petition, defendant argued his trial attorney was ineffective in failing to pursue a diminished capacity or insanity defense. In support, however, defendant provided nothing other than Dr. Harris's earlier reports and defendant's own self-serving and conclusory statements regarding the viability of an insanity or diminished capacity defense. The PCR judge found that the PCR petition was not time-barred but that it was without merit.

Defendant appealed, presenting the following arguments for our consideration:

I. THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

II. THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We add only that the record reveals that trial counsel, who also represented defendant in the Middlesex County matter, obtained an opinion from a psychiatrist and with that information pursued a plea agreement, which in light of the overwhelming evidence of guilt, was favorable, particularly in light of the ultimate determination that concurrent terms would be imposed for the two unrelated murders. Defendant's penal exposure was far greater than what he received and he has failed to demonstrate that the decision to plead guilty constituted an unreasonable tactical decision. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984); State v. Harris, 181 N.J. 391, 431 (2004). Moreover, defendant has failed to demonstrate that an insanity or diminished capacity defense could have been established if he had rejected the plea offer and gone to trial. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).