STATE OF NEW JERSEY v. SAMMIE J. SINCLAIR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0602-08T40602-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMMIE J. SINCLAIR,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 1, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-08-0752.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (James O. Turner, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sammie J. Sinclair appeals from a June 11, 2008 order that denied his petition for post-conviction relief (PCR). We reject defendant's argument that the PCR judge erred when he refused to conduct an evidentiary hearing on defendant's claim that trial counsel rendered ineffective assistance by failing to make a meaningful argument at sentencing. We affirm.

I.

On April 9, 2003, Greenwich Township police charged defendant with the axe murder of his mother and related weapons offenses. In a statement he provided to police shortly after his arrest, defendant reported hearing voices telling him his mother was "out to get him." He also told police his mother was not "clean in the head" and "[i]t was time to take her out." The next day, police transported defendant to the Ann Klein Forensic Center (AKFC) for psychiatric evaluation. Upon admission to AKFC, defendant was diagnosed as suffering from paranoid schizophrenia and appeared to be responding to internal stimuli. When anti-psychotic medication stabilized defendant's psychiatric condition, he was discharged back to the Cumberland County jail.

Defendant was readmitted to AKFC on July 1, 2003, again suffering from acute paranoia. Shortly after admission, defendant stabbed himself in the eye with a pencil in response to auditory hallucinations.

Defendant retained a psychiatric expert, Robert T. Latimer, M.D., who opined on November 24, 2003 that at the time defendant murdered his mother, he was suffering from a mental illness of such severity as to prevent him from understanding the criminal nature of his acts. Latimer also opined that defendant was incompetent to stand trial. By February 2004, according to Latimer, defendant's mental status had improved considerably and he had regained competency.

On November 15, 2004, nine months after Dr. Latimer found defendant competent to proceed, defendant appeared before Judge Geiger and entered a negotiated plea of guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). In return for defendant's guilty plea, the State agreed to recommend a sentence of twenty-five years, subject to the eighty-five percent parole disqualification term required by N.J.S.A. 2C:43-7.2.

At the time of sentencing on December 16, 2004, trial counsel presented the following remarks:

Judge, I don't believe Mr. Sinclair wants to add to his remorse [expressed] at the time of his plea. It was a very tearful day for him. There are significant mental health issues in this case.

[Defendant] stands before the court not having been convicted of anything his entire life.

He worked hard for a living as a dishwasher across the street at a local diner. And they said really good things about him, everybody we talked to.

Unfortunately, there was some indication that there may have been some use of drugs at one point and then what we believe may have been a psychotic episode.

We are as the court knows [sic], we collectively decided not to proceed to trial. It was a difficult decision. We worked hard to get where we are today.

And under the facts and circumstances of this case, we believe the plea agreement is appropriate. We urge the court to accept it and sentence our client according to the plea agreement.

When the judge asked defendant if he agreed with the remarks presented by his attorney, defendant answered "yeah."

The judge discussed the offense circumstances and defendant's prior record, observing that defendant had no prior indictable convictions and "does appear to have some mental health issues." The judge found aggravating factor three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), and aggravating factor nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge found mitigating factor seven, defendant had no prior history of criminal activity, N.J.S.A. 2C:44-1(b)(7). After finding that the aggravating factors outweighed the single mitigating factor, the judge concluded that the plea agreement was fair and sentenced the defendant, pursuant to the plea agreement, to twenty-five years in prison with an eighty-five percent parole disqualifier.

On October 6, 2005, Judge Geiger reconsidered defendant's sentence in light of our remand pursuant to State v. Natale, 184 N.J. 458 (2005). During the Natale remand, defense counsel asked the judge to sentence defendant to "the presumptive twenty [years] or less." The judge found the same aggravating and mitigating factors as he found during the December 2004 sentencing proceeding, and imposed the same sentence.

Defendant's appeal of his October 6, 2005 resentencing was considered at an Excessive Sentence Oral Argument (ESOA) hearing, R. 2:9-11, on January 10, 2006. At the ESOA proceeding, defendant argued that Judge Geiger should have considered mitigating factor four, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4). He also argued that the sentencing court should not have considered aggravating factors three and nine, and that his sentence was excessive. At the conclusion of the January 10, 2006 ESOA proceeding, we entered an order rejecting defendant's claim of an excessive sentence. We also concluded that the sentence imposed did not constitute an abuse of discretion, and affirmed defendant's sentence. State v. Sinclair, No. A-4315-04 (App. Div. January 10, 2006).

On April 20, 2007, defendant filed the PCR petition that is the subject of this appeal, arguing that trial counsel rendered ineffective assistance when he failed to urge the court to find mitigating factors four and eight, the latter of which provides, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8).

At the PCR hearing conducted on June 11, 2008, Judge Geiger found that defendant had not presented a prima facie case of ineffective assistance of counsel and therefore was not entitled to an evidentiary hearing. The judge also made the following additional findings: mitigating factor four, and to some extent number eight, were raised at defendant's ESOA hearing and rejected, thereby barring defendant from raising the same contentions during the PCR proceeding; defendant had the benefit at sentencing of being represented by two experienced attorneys who negotiated an extremely favorable plea agreement, which defendant bargained for and urged the court to accept; even if defense counsel had argued mitigating factors four and eight at sentencing, the sentence imposed would not have been different; the court was well aware at the time of sentencing of defendant's psychiatric history and took that history into account when imposing the sentence; and defendant had failed to establish that trial counsel's performance deviated from accepted standards.

On appeal, defendant raises the following claim:

I. THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON DEFENDANT'S COUNSEL'S FAILURE TO MAKE A MEANINGFUL ARGUMENT AT THE SENTENCING HEARING AND THIS FAILURE UNFAIRLY PREJUDICED THE DEFENDANT, WHO WAS MENTALLY ILL AND BORDERLINE MENTALLY RETARDED, WITH A DISTRESSING AND UNREASONABLE SENTENCE.

1. Introduction

2. Defendant's Petition Not Barred by R. 3:22-4 or R. 3:22-5.

3. Law: Ineffective Assistance of Counsel

4. First Prong of Strickland: Serious Error

5. Second Prong of Strickland: Prejudice.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Defendant's right to present arguments in support of his PCR petition is circumscribed by several procedural rules, of which one is relevant here, namely Rule 3:22-5. That Rule bars a defendant from presenting, in the context of a PCR proceeding, any claim that was conclusively decided in any prior proceeding.

Applying Rule 3:22-5, we are satisfied, as was Judge Geiger, that the very claims defendant now asserts concerning trial counsel's alleged failure to present mitigating factors four and eight at the time of sentencing were fully considered by us at the ESOA hearing, and squarely rejected, when we affirmed the sentence and rejected defendant's claim that the sentence was excessive. In making that determination, we also took into consideration defense counsel's argument during the Natale remand that the sentence should have been reduced to twenty years. Thus, it is abundantly clear that the same arguments now being presented were fully aired by defendant during earlier sentencing reviews and are therefore barred from consideration in defendant's PCR petition. R. 3:22-5.

Nonetheless, for the sake of complete appellate review, we consider defendant's claim of ineffective assistance of counsel on the merits, and conclude that defendant has satisfied neither prong of the Strickland/Fritz test. In particular, counsel's performance was not deficient as counsel's remarks at sentencing included discussion of defendant's psychiatric history, his remorse, and his lack of any prior criminal convictions. While trial counsel did not expressly refer to mitigating factor four, it is clear from his discussion of defendant's psychiatric history that he was urging the judge to find the existence of that mitigating factor.

As is evident from the record, defense counsel chose to confine his remarks to urging the sentencing judge to accept the negotiated plea agreement rather than requesting the judge to undercut the plea agreement by imposing a sentence less than that recommended by the State. We cannot fault defense counsel for that strategic decision, as counsel was obviously aware that the recommended sentence was for a crime far less serious than the original charge of murder. Thus, affording counsel's performance the presumption of reasonableness that Strickland requires, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, we agree with Judge Geiger's conclusion that defendant has not presented prima facie proof that trial counsel's performance was deficient.

Moreover, in light of Judge Geiger's determination that he would not have sentenced defendant any differently even if defense counsel had expressly requested that mitigating factors four and eight be found, defendant has not, and cannot, satisfy the second prong of the Strickland/Fritz test. See id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Specifically, there is no proof that had defense counsel performed as defendant insists he should have, that it would have made any difference. Defendant's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

 
Affirmed.

Indeed, the grand jury had originally returned an indictment charging defendant with capital murder. When the death penalty statute was repealed, the State withdrew its notice of aggravating factors, and the matter proceeded as non-capital murder.

(continued)

(continued)

2

A-0602-08T4

March 15, 2010