STATE OF NEW JERSEY v. WILLIE DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4643-04T44643-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE DAVIS,

Defendant-Appellant.

_______________________________

 

Submitted September 16, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-13-0513 and 03-12-0514.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Joel Silberman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Willie Davis, following an argument with his girlfriend M.M., brutally murdered their two children, a twenty-three-month-old daughter and a five-month-old son. Following defendant's guilty plea on two counts of first-degree murder, N.J.S.A. 2C:11-3a(1), defendant was sentenced to two consecutive thirty-year terms of imprisonment, without parole. Defendant appeals from the judgments of conviction and the sentences imposed. For reasons that follow, we affirm the convictions and sentences without prejudice to defendant filing a petition for post-conviction relief (PCR).

I.

The following description of the murders is derived from the transcript of the plea hearing and the pre-sentence report. On the evening of December 8, 2002, defendant picked up his children from their maternal grandmother's home in Jersey City Heights and took them to his apartment in Bayonne, where he resided with M.M. Following a telephone conversation with M.M., defendant became upset, contemplated death, and attempted to slit his throat with a box cutter. After failing to commit suicide, defendant received a second telephone call from M.M., during which they argued about his belief that she was not helping to support their household and of his suspicion that she was cheating. Immediately after this argument, defendant slit his children's throats with the box cutter. He then cut each child several more times and laid their bodies on his bed.

M.M. later called defendant to tell him she was coming home and asked that he pay her taxi fare when she arrived. After paying the fare, defendant and M.M. went upstairs, where defendant showed her the children's bodies, saying "[l]ook what you made me do." M.M. claimed that defendant then threatened her with a bat and forced her to cut herself. When defendant eventually fell asleep, she fled the apartment, found a police patrol car and told the officer what had happened. Defendant was taken to Jersey City Medical Center where on December 9, 2002, he admitted to the police that he killed his children.

On April 15, 2003, defendant was charged under Accusation Nos. 513-03 and 514-03 with two counts of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1). On the same day, defendant pled guilty to both counts. In exchange for his plea, the State agreed not to seek the death penalty, but would instead recommend a sentence of thirty years of imprisonment, without parole on each count, to be served consecutively. Pursuant to Rule 3:9-2, the court established the factual basis for the plea, confirmed that defendant understood his decision, and ensured that defendant had been neither threatened nor coerced into entering his plea. Once satisfied that defendant's plea was both knowing and voluntary, the court accepted the plea and set a sentencing date of August 14, 2003.

In the interim, on February 3, 2003, two months before the plea, social worker Jorge L. Abreu submitted a preliminary case review indicating that defendant committed the murders during "a sudden disorganized homicidal rage" brought about by a combination of humiliation, substance abuse, early childhood trauma, and a neuro-cognitive deficiency. On April 13, 2003, two days before the plea hearing, defendant was interviewed by defense psychologist, Guillermo Parra, Ph.D. Parra interviewed defendant again on May 13, 2003, and May 17, 2003. On June 5, 2003, Parra submitted a report in which he opined that, while defendant was competent to stand trial, he suffered from a mental defect during the murders rendering him unaware that his actions were wrong. Parra agreed with Abreu that defendant suffered a "[c]atathymic crisis," causing defendant to believe that the only logical way to save his family was by destroying it. He further opined that defendant has an "incipient schizophrenic disorder" which may have facilitated the crisis.

The sentencing date was adjourned for over one year due to questions about defendant's mental state. The State was concerned that there existed a reasonable potential for a PCR motion without some "articulation on the record that . . . he was competent . . . to waive any affirmative defenses he may have . . . and he could accept the plea." Nevertheless, on November 18, 2003, while represented by his plea counsel, defendant signed an addendum to the April 15, 2003 plea form, acknowledging his understanding of the defense of insanity; acknowledging that "based on evidence provided to [him] since the entry of [his] plea," he "could attempt to assert the defense"; giving up his right "to assert the defense of insanity or any other defense allowed to [him] by law"; and requesting the trial court "to sentence [him] for the crimes [he] pled guilty on April 15, 2003."

On May 5, 2004, the court ordered an independent competency evaluation to be prepared by Peter D. Paul, Ph.D. On July 28, 2004, Paul submitted his evaluation report opining that defendant was malingering and feigning mental impairments in an effort to "lessen his degree of criminal responsibility." Paul concurred with Parra that defendant was fully competent to either stand trial or to waive his rights.

On October 15, 2004, defense counsel notified the court that defendant required new counsel because of issues pertaining to defendant's desire to withdraw his guilty plea. On December 7, 2004, represented by new counsel, defendant filed a motion seeking to withdraw his guilty plea, claiming innocence and arguing that he was unaware of his possible affirmative defenses at the time of the plea and may have lacked the mental capacity required to waive his rights. Because the trial judge who accepted defendant's guilty plea had retired from the bench, the motion was argued before another judge on January 25, 2005.

On February 9, 2005, the trial court entered an order supported by a written opinion denying defendant's motion to vacate his guilty plea. As to the question of defendant's innocence, the court found that defendant's assertion was nothing more than a change of mind "clearly right on point with Paul's independent finding that he is feigning mental illness to avoid his plea." Concerning defendant's competency, the court noted that defendant's own expert found him competent, only raising mental illness as it pertained to a possible insanity defense, which the court found defendant had waived when he signed the addendum and requested sentencing pursuant to his plea. The court concluded that defendant did not present sufficient evidence required to justify withdrawal of his plea because "[n]othing has objectively changed other than defendant changing his mind." On March 3, 2005, defendant was sentenced pursuant to his plea agreement to two consecutive thirty-year terms of imprisonment without parole.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO VACATE THE PLEA BECAUSE DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY AND MAINTAINED THAT HE IS NOT GUILTY OF THE OFFENSE.

A. DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY.

B. CLAIM OF INNOCENCE.

POINT II.

GIVEN THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THESE OFFENSES, AND IN LIGHT OF THE AGGRAVATING AND MITIGATING FACTORS, INCLUDING DEFENDANT'S MENTAL STATE, THE COURT ABUSED ITS SENTENCING DISCRETION IN ORDERING THAT THE TWO 30-YEAR TERMS OF IMPRISONMENT, BOTH TO BE SERVED WITHOUT PAROLE, RUN CONSECUTIVELY.

II.

In Point I, defendant argues that the trial court erred when it denied his motion to vacate his guilty plea because the plea was unknowingly and involuntarily made, and he is not guilty of the offenses. Specifically, defendant contends in Point IA that, due to ineffective assistance of counsel, he lacked knowledge of his possible affirmative defenses of insanity and diminished capacity prior to entering the plea. Alternatively, in Point IB, defendant asserts that the guilty plea was improperly entered because he maintained his innocence, asserting that his mental condition had improved since the plea and he now believes an unknown intruder entered his apartment, slashed his throat and killed his children. The State counters that the plea was knowingly made and voluntarily entered, and defendant is barred from raising the ineffective assistance of counsel claim on direct appeal because it was not fully developed in the trial court.

Defendant pled guilty to the charges of first-degree murder, pursuant to Rule 3:9-2, which provides in pertinent part:

The court . . . shall not accept such plea without first questioning the defendant . . . and determining by inquiry of the defendant and others . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea.

Motions to withdraw guilty pleas are governed by Rule 3:21-1, which provides in relevant part that the motion "be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice."

The consequences of a guilty plea require that a motion seeking to withdraw the plea be liberally granted, but the trial court has discretion in making the decision. State v. Bellamy, 178 N.J. 127, 135 (2003); see also State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.) ("Liberality in exercising discretion does not mean an abdication of all discretion."), certif. denied, 66 N.J. 312 (1974). In exercising such discretion, the court must consider whether the interests of judicial finality outweigh the defendant's interests in a fair trial or waiver of a trial through a voluntary and knowing plea. State v. Deutsch, 34 N.J. 190, 197-98 (1961). In cases where the defendant knowingly and voluntarily enters a plea, the court should vacate the plea only if the defendant makes a good faith "plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).

Defendant argues that he was denied effective assistance of plea counsel. Defendant contends that he did not knowingly and voluntarily enter his plea because counsel failed to inform him of possible affirmative defenses of insanity and diminished capacity. The insanity defense is limited to the question of "whether or not the defendant was either unable to know the nature and quality of the act he was doing . . . or, if he did know it, that he did not know that what he was doing was wrong." State v. Breakiron, 108 N.J. 591, 616 (1987); N.J.S.A. 2C:4-1. While the insanity defense excuses the defendant's actions entirely, the defense of diminished capacity allows evidence relating to whether the defendant had "the requisite criminal mental state." Breakiron, supra, 108 N.J. at 620; N.J.S.A. 2C:4-2.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

In Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1984), the Court applied the Strickland test to ineffective assistance of counsel claims made in connection with guilty pleas. See also State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (applying Strickland to guilty pleas in New Jersey in accordance with Hill), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). In this context, while the first prong remains exactly the same, in order to meet the second prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. In particular, where the allegation is that counsel failed to inform the defendant of possible affirmative defenses, "the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Id. at 59, 106 S. Ct. at 371, 88 L. Ed. 2d at 210.

With respect to the first prong of Strickland, defendant argues that his counsel's conduct was deficient because "it is not clear whether the attorney who represented him at the plea advised [him] about the possibility of a mental defense." Defendant further contends that an evidentiary hearing is needed to resolve this issue. The State acknowledges that "the record regarding [defendant's] claim is incomplete" and that the "[r]esolution of the issues presented here depends upon facts that lie outside the record, and direct appeal does not provide an appropriate remedy. Instead, this claim of ineffective assistance should be reserved for post-appeal, post-conviction disposition."

We have strong reservations concerning whether defendant will be able to establish a prima facie claim of ineffective assistance of plea counsel because in his plea form addendum of November 18, 2003, he acknowledged that he had been informed of his affirmative defenses and still requested to be sentenced in accordance with his plea agreement of April 15, 2003. However, we agree that he is entitled to present the claim, but that the claim should be presented in the first instance in the trial court via a PCR, not on direct appeal, because the record is insufficient to address the claim. Preciose, 129 N.J. at 460 ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel-claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").

III.

In Point IB, defendant argues in the alternative that the trial court erred by denying his motion to vacate his plea because he proclaimed his innocence. We disagree.

When a defendant asserts innocence prior to sentencing, courts "generally exercise their discretion liberally to enable withdrawal of the plea." Deutsch, supra, 34 N.J. at 198. However, because defendant knowingly and voluntarily entered his plea, his burden remains high to show that his innocence is plausible. Huntley, supra, 129 N.J. Super. at 18.

Defendant asserted his innocence in an affidavit dated December 7, 2004, approximately twenty months after entering his plea and thirteen months after signing the addendum asking to be sentenced in accordance with his plea agreement. In his affidavit, defendant stated that, prior to his plea, he could not remember what happened on the night his children were murdered. He claimed that "[e]veryone told me that I had killed my kids, and I believed them . . . and I did not want to get the death penalty, so I agreed to take a plea bargain." He asserted that his memory has since gradually cleared, and thanks to a dream he had during the summer, he now remembers that he was attacked from behind by an unknown intruder and passed out until he woke up in the hospital.

In denying the motion, the trial judge determined that defendant had asserted nothing more than a change of mind, which is insufficient to overturn an otherwise valid plea. The judge rejected defendant's claim of innocence, determining that the plea judge had performed a thorough examination of defendant's knowledge and understanding of the plea, and of its consequences, during the plea hearing. We agree and find defendant's contention meritless.

There is no credible evidence in the record to support defendant's contention that an unknown intruder attacked him and killed his children. On the contrary, the record contains overwhelming evidence, including defendant's repeated admissions that he killed his children. The record shows that defendant's claim of innocence was implausible and not made in good faith. Accordingly, it was properly rejected by the trial judge.

IV.

We next address defendant's arguments challenging his sentences. Defendant argues that, although he entered his guilty plea on the basis of the State's agreement to recommend two consecutive thirty-year sentences of imprisonment, without parole, the trial court abused its discretion by failing to sentence him to concurrent terms. Defendant contends that the court erred in not considering his history of mental illness and childhood abuse as a mitigating factor. Defendant also asserts that the two crimes, while horrific, were so close in time and place as to be a single aberrant act, thereby justifying imposition of concurrent terms in accordance with State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We reject these arguments.

The trial court found the following three aggravating sentencing factors: N.J.S.A. 2C:44-1a(1) (the heinous, cruel or depraved manner and circumstances of the offenses); N.J.S.A. 2C:44-1a(2) (the extreme vulnerability of the victims because of their young ages); and N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others from violating the law). The court only found one mitigating sentencing factor under N.J.S.A. 2C:44-1b(7) (a lack of "any real serious" prior criminal record). Emphasizing that there can be no free crimes, the court determined that defendant's crimes were separate and distinct acts of violence which, although occurring close in time, warranted imposition of consecutive thirty-year sentences. The court concluded that:

[B]ecause of all of the factors that I went through, and because of all of what occurred that night, and everything that occurred to those two innocent children, and because to do otherwise would give you and anyone else a license to say if I take one life now, I might as well take another life if they're there . . . . [t]he sentence will be consecutive, and it will be 60 years . . . without parole.

When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994).

In Yarbough, supra, 100 N.J. at 643-44, the Court established guidelines for reviewing the imposition of concurrent versus consecutive sentences. In terms of the crimes themselves, reviewing courts should consider the independence of the crimes and their objectives, whether the crimes are distinct, involving separate acts of violence or occurring at different times or different places, and whether there are multiple victims or convictions. Id. at 644; see also State v. Baylass, 114 N.J. 169, 180 (1989). In general, "there can be no free crimes in a system for which the punishment shall fit the crime"; the sentencing decision should include a detailed statement of the reasons for imposing a particular sentence; and "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense." Yarbough, supra, 100 N.J. at 643-44. The Court also recognized that some cases are "so extreme and so extraordinary that deviation from the guidelines may be called for." Id. at 647.

We perceive no merit in defendant's first contention that the court erred by not finding that his mental illness arising from childhood abuse and trauma constituted a mitigating factor. N.J.S.A. 2C:44-1b(4) requires the court to consider mental illness as a mitigating sentencing factor if "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." Under State v. Dalziel, 182 N.J. 494 (2005), "[a]ggravating and mitigating factors must be supported by credible evidence . . . [and] where they are so supported, they must be part of the deliberative process." Id. at 505. However, where "the evidence could support, but does not compel, the conclusion that any of the cited mitigating factors apply," State v. Sherman, 367 N.J. Super. 324, 360, certif. denied, 180 N.J. 356 (2004), "failure to find a particular mitigating factor [is] not an abuse of discretion." Dalziel, supra, 182 N.J. at 504.

Defendant cites State v. Nataluk, 316 N.J. Super. 336, 340 (App. Div. 1998), a case in which the defendant presented an insanity defense at trial, but which defense was rejected by the jury. On appeal, the defendant claimed that the trial court erred in not submitting a diminished capacity defense to the jury, and we agreed. Ibid. Similarly, in State v. Serrano, 213 N.J. Super. 419, 423 (App. Div. 1986), certif. denied, 107 N.J. 102 (1987), we found error in the trial court's not issuing a diminished capacity charge to the jury when the defendant presented considerable psychiatric evidence sufficient to indicate he may have been unaware that his actions were wrong. Id. at 422.

Unlike the defendants in Nataluk and Serrano, defendant neither presented an insanity nor a diminished capacity defense to a jury. Rather, he waived those defenses. Furthermore, the existence of defendant's claimed mental illness is not entirely supported by the record; therefore, the court was not required to consider it. Dalziel, supra, 182 N.J. at 505. Parra's report supported mental illness, but it was contradicted by Paul's court-ordered independent competency evaluation, as well as defendant's waiver of his insanity defense.

Defendant argues next that the trial court erred by imposing consecutive, rather than concurrent sentences, citing State v. Louis, 117 N.J. 250 (1989), contending that his crimes were the result of a single act of aberrant behavior and stemmed from the same objectives, and that, therefore, his sentences should run concurrently. We disagree.

In Louis, supra, 117 N.J. at 252, the defendant broke into a woman's apartment, raped her, stole her money, stabbed her and her child, and set the apartment on fire. The trial court sentenced the defendant on seven counts, including two counts of attempted murder and two of kidnapping, to an aggregate sentence of 130 years with sixty-five years of parole ineligibility. Id. at 254. Following an appeal and remand, we restructured the sentence in accordance with Yarbough, finding that the crimes and objectives were not wholly independent and were likely the result of a single period of aberrant behavior. Id. at 255. We sentenced the defendant to a sixty-year term of imprisonment with thirty years of parole ineligibility. Ibid. The Court affirmed, finding that although some cases may be "'so extreme and so extraordinary that deviation from the guidelines may be called for[,]'. . . [t]hat does not mean that all consecutive sentencing criteria are to be disregarded in favor of fashioning the longest sentence possible." Id. at 258 (quoting Yarbough, supra, 100 N.J. at 647).

We find Louis distinguishable because Louis involved convictions of varied crimes, including kidnapping, attempted murder, robbery and arson. Id. at 253. In Louis, the trial court linked the sentences on all the varied crimes into one extremely long, consecutive sentence, with each crime graded at the maximum range, which suggested that the court "double-count[ed] aggravating factors by applying the horror of the assaultive crimes to each individual crime." Id. at 253-55.

Here, defendant was sentenced in accordance with his plea agreement. The court rendered a well-reasoned opinion, providing a thorough explanation of its decision to impose consecutive sentences following the Yarbough guidelines, while emphasizing the severity of defendant's acts. Yarbough, supra, 100 N.J. at 647. The court found that defendant's actions in killing the children involved separate objectives and acts of violence, and that the only Yarbough factor mitigating in favor of concurrent terms was proximity in time. Moreover, it found three aggravating factors (the heinousness of the offense, the vulnerability of the victims, and the need to deter) and only one mitigating factor (no prior record).

Rather, defendant's case is similar to State v. List, 270 N.J. Super. 169, certif. denied, 134 N.J. 486 (1993), in which the defendant killed his wife, his mother, and his three children. Id. at 172. The defendant shot his wife and his mother in the morning on different floors of their home, and shot each of his three children as they returned home from school in the afternoon. Id. at 172-73. In imposing consecutive sentences for each murder, the court found that, although the killings were related in the defendant's mind, they were "predominately independent," having been committed at different times in separate circumstances, and were also so extreme as to justify an exception from the Yarbough guidelines. Id. at 176.

The Court also employed the "extreme case" exception in State v. Carey, 168 N.J. 413, 420 (2001), in which the defendant smashed into an oncoming car while driving drunk, killing two people and severely injuring two others. The defendant was convicted of two counts of vehicular homicide and of two counts of assault by auto, and was sentenced to consecutive terms on the homicide charges. Id. at 420-21. The Court determined that the Yarbough factors weighed three-to-two in favor of concurrent sentences, but stated that aggravating factors can play a large part in the final sentencing outcome. Id. at 424.

The Court looked to the "extreme cases" exception, determining that certain cases warrant consecutive sentences even where the majority of Yarbough factors indicate otherwise. Id. at 427-28. It stated that "[c]rimes involving multiple deaths . . . represent especially suitable circumstances for the imposition of consecutive sentences," particularly in cases where "a perpetrator intentionally targets multiple victims." Id. at 428-29. The Court concluded that "the multiple-victims [Yarbough] factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths . . . have been inflicted upon multiple victims." Id. at 429-30. See also State v. Molina, 168 N.J. 436, 442 (2004) (reemphasizing that consecutive sentences can be imposed based on the multiple-victim Yarbough factor alone). The same principle applies here. Accordingly, we find no error in the imposition of consecutive sentences, defendant having brutally murdered his two children in a heinous manner.

The convictions and sentences are affirmed without prejudice to defendant filing a PCR petition in the trial court asserting his claim of ineffective assistance of plea counsel. We direct the trial court to amend the judgments of conviction to reference the mitigating sentencing factor found as N.J.S.A. 2C:44-1b(7), rather than as N.J.S.A. 2C:44-1b(6).

Affirmed.

Parra defined "[c]atathymic crisis" as "an event during which an individual develops unbearable psychic tension and then develops the idea that the only way to get rid of the tension is through a violent act."

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

We note that the two judgments of conviction mistakenly reference the mitigating factor found as N.J.S.A. 2C:44-1b(6). We direct the trial court to amend the judgments of conviction accordingly.

(continued)

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A-4643-04T4

October 15, 2008