STATE OF NEW JERSEY v. JEFFREY SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5481-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY SMITH,

Defendant-Appellant.

________________________________________________

November 14, 2011

Submitted October 31, 2011 - Decided

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment

No. 07-09-1462.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged in one indictment with eluding the police, in violation of N.J.S.A. 2C:29-2(b); aggravated assault while eluding the police, in violation of N.J.S.A. 2C:12-1(b)(6); aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); and knowingly leaving the scene of an accident resulting in serious bodily injury, in violation of N.J.S.A. 2C:12-1.1.

Defendant was also charged in a second indictment with aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); and contempt, in violation of N.J.S.A. 2C:29-9(b).

These two indictments were based upon a series of acts committed by defendant on January 4, 2007. Defendant first held a knife to the throat of his then girlfriend at her place of employment and inflicted a knife wound to her body during this confrontation, then eluded the police who attempted to arrest him by driving his car away from the scene at a high rate of speed, and finally, collided with another car during the course of this eluding, which caused very serious injuries to the driver of the other car.

Defendant entered into a plea bargain under which he agreed to plead guilty to the two counts of aggravated assault contained in the first indictment and the unlawful possession of a weapon and contempt charges contained in the second indictment, and the State agreed to recommend an aggregate term of eight years imprisonment, with the 85% parole disqualifier recommended by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to dismiss the other charges against defendant.

The trial court accepted the plea bargain and sentenced defendant to concurrent eight-year terms of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, for the two aggravated assaults, and concurrent eighteen-month terms of imprisonment for unlawful possession of a weapon and contempt.

Defendant did not file a direct appeal. However, more than a year after he was sentenced, defendant filed a petition for post-conviction relief. The primary ground of his petition was that his assigned counsel had been ineffective in failing to argue at sentencing that the trial court should find mitigating factors based on defendant's mental condition. Defendant also argued that his trial counsel was ineffective in failing to have him undergo a psychiatric evaluation before sentencing. Defendant did not seek to retract his guilty plea based on this alleged ineffective assistance of counsel at sentencing.

By an oral opinion rendered on December 16, 2009, the trial court denied defendant's petition.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I:

THE LOWER COURT ERRED IN DENYING MR. SMITH'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

POINT II:

MR. SMITH WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Den Uyl's December 16, 2009 oral opinion. We also note that the medical history of defendant's depressive state was contained in the presentence report and attachments to that report, which the trial court had an opportunity to review before sentencing. In addition, we note that the plea bargain that defendant's assigned counsel negotiated on his behalf avoided defendant's substantial exposure to consecutive sentences if he had been convicted of all the charges against him, which involved aggravated assaults upon two separate victims as well as eluding the police. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).