STATE OF NEW JERSEY v. OMAR L. SHEPPERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1719-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR L. SHEPPERSON,

Defendant-Appellant.

________________________________

February 15, 2011

Submitted October 25, 2010 Decided

Before Judges Grall and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-01-0195.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Omar L. Shepperson appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction for first-degree aggravated manslaughter pursuant to a plea agreement for the shooting death of a twelve-year-old boy. We affirm.

Defendant was driving through a densely populated residen tial section of Pleasantville on September 4, 2005, while under the influence of a marijuana cigarette laced with PCP. He ran domly fired a pistol out the window of his car, and killed twelve-year-old Quadir Swain, who was inside a house at the time. Defendant was apprehended and charged with the shooting.

On January 24, 2006, an Atlantic County grand jury indicted defendant for first-degree murder, contrary to N.J.S.A. 2C:11-3a(1), (2); first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b.

On May 11, 2007, defendant agreed to plead guilty to first-degree aggravated manslaughter in exchange for which the State would dismiss the remaining charges and recommend a sentence of twenty years subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant agreed to accept the sentence and, if he pursued a direct appeal, the State would have the right to withdraw from the plea agreement. In his plea allocution, defendant stated that he understood the terms of the plea and sentence and was pleading voluntarily, although he stated that he was on mood-stabilizing medication. He also stated that he was high on alcohol and drugs when he shot the victim.

On August 10, 2007, defendant was sentenced, at which time the prosecutor recommended that defendant be sentenced in accor dance with the plea agreement. Plea counsel stated that defen dant's prior encounters with law enforcement occurred when he was a juvenile, and he had substantial mental-health issues as a schizophrenic. Plea counsel asked that defendant be sentenced in accordance with the negotiated plea. She urged that defen dant was unlikely to be a recidivist. She also objected to the prosecutor's argument that an increase in shootings in the area should be considered in determining whether defendant's sentence should serve as general deterrence for similar crimes. She did not ask the judge to consider a lesser sentence.

The judge reviewed the sentencing factors enumerated in N.J.S.A. 2C:44-1. He found that there were two aggravating fac tors pursuant to N.J.S.A. 2C:44-1a(3) and (9): a risk that defendant would commit another crime based on his extensive juvenile record and his history of adult arrests, and a need for general deterrence due to the increase in gun violence in Atlan tic County. The judge found as a mitigating factor pursuant to N.J.S.A. 2C:44-1b(4) that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, in the form of defendant's mental illness. He sentenced defendant in accordance with the plea agreement twenty years of confinement with eighty-five percent to be served without parole, five years mandatory parole supervision, statutory fines, and costs. The other three counts of the indictment were dismissed.

On July 21, 2008, defendant filed a pro se PCR petition, stating that he had been diagnosed with schizophrenia; he was intoxicated at the time of the offense; his statement to the police was not admissible; he was not competent to waive his Miranda1 rights; his sentence was illegal; his plea counsel was ineffective; and he was coerced to plead guilty.

The Public Defender filed a supplemental petition on his behalf on April 30, 2009. That petition asserted that defendant received ineffective assistance of counsel in that his attorney gave him misinformation and poor advice, failed to properly pur sue his defenses, "failed to argue properly at sentencing, coerced him into accepting a plea, [and] allowed an inadequate factual basis to stand resulting in his conviction." The peti tion also incorporated by reference defendant's argument in his pro se petition that his sentence was illegal.

At the August 13, 2009, hearing on the PCR petition, defen dant limited his arguments to the issues relating to sentencing and withdrew the issues related to his plea. Defendant asserted that his plea counsel was ineffective because she failed to seek a lower-than-negotiated sentence by arguing a variety of poten tial mitigating factors as well as the effect of the NERA on his actual time served.

The judge, who had accepted defendant's plea and imposed sentence, placed his decision on the record that day. He observed that defendant had been represented by zealous and experienced plea counsel who worked hard to negotiate his plea. Nonetheless, he considered the merits of defendant's arguments that related to sentencing. He rejected mitigating factor two2 because of defendant's statement to the police that he was try ing to fend off some people who were trying to hurt him, which exhibited "some knowledge that the gun was capable of rendering harm." Thus, even if mitigating factor two was found applica ble, it "would have to be accorded very little weight." The judge then individually considered factors six through thirteen3 and found them inapplicable to defendant.

The judge concluded that it was not ineffective for defendant's plea counsel not to raise those mitigating fac tors, and that, even if it was, they would not have convinced him to impose a lesser sentence. He also found that the sen tence was not excessive. An order denying PCR without an evi dentiary hearing was entered on August 13, 2009. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S SENTENCE WAS NOT ILLEGALLY EXCESSIVE.

POINT II - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CON TENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS[,] AND PETITIONS FOR POST-CONVICTION RELIEF.

B. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIR TUE OF HER FAILURE TO PRESENT ALL MITIGATING FACTORS THAT APPLIED TO DEFENDANT AT THE SENTENCING HEARING.

C. TRIAL COUNSEL RENDERED INEFFEC TIVE LEGAL REPRESENTATION BY VIR TUE OF HER FAILURE TO POINT OUT THE N.E.R.A. CONSEQUENCES ON DEFENDANT'S SENTENCE AT THE SENTENCING HEARING.

D. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD DEFENDANT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error. Ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)).

Where no evidentiary hearing has been held, we "may exer cise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zet tlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid.

We first address defendant's second point on appeal respect ing ineffective assistance of plea counsel. In Strick land v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the Sixth Amendment constitutional guarantee of effec tive assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffec tive assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demon strate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the profes sional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable profes sional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of coun sel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Jack, 144 N.J. 240, 248 (1996) (internal quotation marks omitted).

With respect to ineffective assistance of counsel, defen dant argues that his plea counsel was ineffective in three ways. First, she did not advance any argument for a sentence below the prosecutor's recommendation, contrary to State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002). Second, she did not present mitigating factors that might have influenced the judge to be more lenient and sentence below the negotiated plea. Third, she did not argue the NERA consequences of his sentence in attempting to obtain a more lenient sentence for him.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's second and third ineffective-assistance-of-counsel arguments "are without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substan tially for the reasons expressed by the trial judge in his oral opinion delivered on August 13, 2009. We reach this conclusion because defendant has failed to demonstrate that he was preju diced because the PCR judge, who also sentenced defendant, found that none of the issues raised by defendant in his second and third points on appeal would have led him to impose a lesser sentence. Where prejudice is absent, we need not consider whether counsel was ineffective. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."). We turn to defendant's first ineffective-assistance-of-counsel argument.

Defendant urges that Briggs, supra, 349 N.J. Super. at 501, stands for the proposition that plea counsel is ineffective whenever the attorney "did not advance any argument that defen dant's sentence should be less than the bargained[-]for sen tence." The plea agreement in Briggs "provided that 'defense counsel agrees not to request a sentence of less than twenty years.'" Id. at 498. The attorney did argue that ten of the twelve mitigating factors applied to defendant and focused on the psychological and psychiatric defense reports. Id. at 500. The judge found that four mitigating factors were present, ibid., and sentenced defendant to eighteen rather than the twenty-year term to which defendant agreed in the plea agreement, id. at 498.

The Briggs panel discussed case law prohibiting "'restric tions upon the function of counsel in defending a criminal prosecution'" that struck down a state law barring summations in a nonjury trial, id. at 500 (quoting Herring v. New York, 422 U.S. 853, 857, 95 S. Ct. 2550, 2553 45 L. Ed. 2d 593, 598 (1975)), and that reversed an order barring defendant from con sulting with counsel between court sessions, id. at 501 (citing State v. Fusco, 93 N.J. 578, 586-87 (1983)). The panel opined:

In our view, the ability of counsel to provide a meaningful argument at sentencing, even in a case that appears "open and shut," is no less important than the opportunity to give a summation in a nonjury case. Sen tencing hearings under the Criminal Code "are crucial stages of a trial for which counsel must be available." State v. Gior gianni, 189 N.J. Super. 220, 230 (App. Div.), certif. denied, 94 N.J. 569 (1983). As in any stage of the proceeding, circum stances must not be such that counsel "is prevented from making effective prepara tions" and a meaningful presentation to the court. Ibid. It is at this point that counsel has the opportunity to make a vigor ous argument regarding mitigating and other circumstances, hoping to personalize defen dant in order to justify the least severe sentence under the Criminal Code.

[Ibid.]

The panel then held that "there can be no doubt that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement." Ibid. It recognized that counsel did argue ten mitigating factors, and the judge sentenced below the agreed term, but "counsel did not advance any argument that, because of the preponderance of mitigating factors, a sentence substan tially lower than the presumptive term of twenty years was mer ited" and did not argue that defendant was eligible for a sen tence appropriate to an offense one degree lower. Id. at 502. The panel concluded that "we cannot say with confidence that the restriction upon defense counsel did not affect her ability to present a cogent and meaningful argu ment at sentencing" and refused to speculate that the sentencing judge would have rejected it. Id. at 503. The panel therefore reversed and remanded for resentencing. Ibid.4

Here, it is not clear whether defendant's plea counsel was precluded by the plea agreement from arguing for a sentence below the negotiated sentence because the agreement makes no mention of such a restriction. At the plea hearing, defense counsel merely said that defendant "agree[s] to accept the 20-year sentence" and that he "will be asking [the court] to sen tence in accordance with the 20-year recommendation." She did not say that it would violate the plea agreement for her to argue for a sentence below the negotiated recommendation, although that might be inferred from her comments about defendant "accepting" the negotiated sentence.

We do not need to determine whether there was such a restriction here because defendant is not entitled to relief. This is so because he cannot show that his counsel's alleged inability to argue for a lower sentence prejudiced the outcome of his case, quite unlike the defendant in Briggs, who might have been eligible for a downgraded sentence. See State v. Allegro, 193 N.J. 352, 366 (2008) (noting that the defendant must prove not just deficient performance by counsel but also that the deficiency would likely have led to a different result in defendant's case). Unlike Briggs, there is no likelihood of a lesser sentence here. At the PCR hearing, the judge reviewed and assessed each of the alleged mitigating factors that defendant's trial counsel declined, for whatever reason, to raise at the original sentencing. He found that his sentence would not have been different even if those arguments had been made. There is, therefore, no basis to believe that the outcome at sentencing would have been different had defendant's trial counsel advanced all of the grounds for mitigation she allegedly was not permitted to mention, and defendant has failed to prove the second prong of Strickland.

Defendant argues in his first point on appeal that his sentence is illegal because it is in excess of the fifteen-year presumptive term for first-degree aggravated manslaughter. His argument rests on two legal errors. First, the presumptive term for first-degree aggravated manslaughter was twenty years in a range of ten to thirty, N.J.S.A. 2C:44-1f(1)(a), not fifteen, so he was indeed sentenced at the presumptive term. Second, and more fundamentally, presumptive sentences were abolished in 2005 with State v. Natale, 184 N.J. 458 (2005). Defendant was sentenced in 2007, and there is no suggestion in the sentencing transcript that the trial court used the old presumptive sentence as a "pivot point" for moving defendant's sentence up or down within the sentencing range in violation of Natale. See id. at 484 (describing the previous system of presumptive sentences). Defendant's sentence was thus a legal one.

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

2 N.J.S.A. 2C:44-1b(2).

3 N.J.S.A. 2C:44-1b(6) to (13).

4 The continuing vitality of Briggs is in question. The Supreme Court granted certification in State v. Hess, No. A-4269-07 (App. Div. Apr. 8, 2010), certif. granted, 203 N.J. 95 (2010), where the defendant had argued, in part, that she was denied effective assistance of counsel, "assert[ing] in reliance on Briggs that if her trial attorney had argued 'all available mitigating evidence' before the sentencing court, she 'would have received a lesser sentence.'" Id. at 24. This case was argued before the Supreme Court on January 5, 2011, but as of this date, has not been decided.