STATE OF NEW JERSEY v. SHAMONIA RICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0296-05T40296-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMONIA RICE,

Defendant-Appellant.

__________________________________

 

Submitted October 17, 2006 - Decided November 1, 2006

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-06-0756.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of a petition for post-conviction relief.

Defendant was indicted for robbery, in violation of N.J.S.A. 2C:15-1, and felony murder, in violation of N.J.S.A. 2C:11-1a(3). Defendant pled guilty to aggravated manslaughter, in violation of N.J.S.A. 2C:11-4, pursuant to a plea bargain under which the State agreed to dismiss the robbery and felony murder charges. The trial court sentenced defendant to a sixteen year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. In an appeal heard on an excess sentence calendar, see R. 2:9-11, we affirmed defendant's sentence. State v. Rice, No. A-6102-01T4 (App. Div., Nov. 14, 2002). The Supreme Court denied defendant's petition for certification. 177 N.J. 493 (2003).

Defendant filed a petition for post-conviction relief based on alleged ineffective assistance of trial counsel. Defendant submitted an affidavit in support of her petition, which alleged in pertinent part:

4. I never discussed the issue of self defense with my attorney. I had scratches from the incident and feared for my life.

5. The issue of self defense was never brought up by my attorney.

6. I never swung the victim around. The manslaughter charge should have been involuntary or at least reckless.

7. Had I known these things, I would not have plead guilty.

The trial court denied defendant's petition by an oral opinion delivered on August 5, 2005.

On appeal, defendant presents the following arguments:

I. THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT SHE 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.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's August 5, 2005 oral opinion. We add the following supplemental comments. "Where recklessness . . . is the requisite mental state to establish an offense," as with the aggravated manslaughter charge to which defendant pled guilty, "self-defense is not a justification." State v. Moore, 158 N.J. 292, 301 (1999). Moreover, even if self-defense were a defense to this charge, defendant's own version of the offense would not have provided a factual foundation for submission of a self-defense instruction to the jury. An attorney's alleged failure to discuss an unavailable defense with his or her client cannot be found to constitute ineffective assistance.

 
Affirmed.

(continued)

(continued)

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A-0296-05T4

November 1, 2006