STATE OF NEW JERSEY v. WILLIE BARR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE BARR,

Defendant-Appellant.

_______________________________________

December 18, 2013

Submitted December 10, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-0994.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was indicted and later pleaded guilty, pursuant to a negotiated plea agreement, to two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as the lesser-included offenses of the first-degree murder charges for which he was indicted. Defendant also pleaded guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, as well as single counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, second-degree burglary, N.J.S.A. 2C:18-2, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

In support of the trial court's acceptance of his guilty plea, defendant testified that, on July 7, 2000, he and three others went to an East Orange residence, which they believed to be a stash house, to commit a robbery. Defendant was armed with a knife and a .45 automatic handgun. He retained the knife but gave the handgun to one of his cohorts, who later gave it to another, codefendant Tollie McCatt. When the four entered the premises, the victims were sleeping. Defendant overpowered the two victims by striking their heads with a bottle, after which he and McCatt tied them up. Defendant and the three others then searched the home for money and drugs. Afterward, McCatt shot one victim in the back of the head; in giving a factual basis for his guilty plea, defendant volunteered that McCatt had "executed" this victim. McCatt then shot the other victim, who was also repeatedly stabbed with a knife; the record reveals only defendant was armed with a knife.

The judge imposed an aggregate twenty-eight-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, arguing his sentence was excessive. We rejected this contention and affirmed. State v. Willie Barr, No. A-3742-03 (App. Div. Jan. 11, 2005). For reasons not clearly revealed by the record, defendant was resentenced on June 24, 2005, and an aggregate twenty-six-year prison term was imposed. This judgment was corrected on January 17, 2007, to memorialize that the abrogation of the use of presumptive terms in sentencing, State v. Natale, 184 N.J. 458 (2005), did not require imposition of a different sentence.

On September 21, 2009, defendant filed a post-conviction relief (PCR) petition, arguing his trial counsel was ineffective by failing to: (1) argue for a presumptive term; (2) present mitigating factors at the sentencing hearing; and (3) recognize and pursue the fact that, according to defendant, he did not provide an adequate factual basis for the aggravated manslaughter convictions.

On July 9, 2010, the judge denied defendant's PCR petition without conducting an evidentiary hearing. The judge determined that defendant's first argument was rendered moot by Natale's abrogation of presumptive terms and the resentencing. She rejected the second argument because defendant failed to provide sufficient evidence to support the mitigating factors in question. And the judge found no merit in the third because the factual basis provided by defendant fully supported the aggravated manslaughter convictions.

Defendant appeals, arguing:

I. THE PCR COURT'S RULING MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Defense Counsel Improperly Per-mitted Defendant To Plead Guilty To Aggravated Manslaughter When Defendant Was Unable To Provide An Adequate Factual Basis To Support The Charge.

B. Trial Counsel Provided Ineffec-tive Assistance When He Failed To Argue For Mitigating Factors Supported By The Record.

II. THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We briefly add, with respect to Point I(A), that the factual basis offered by defendant permitted his conviction on both counts of aggravated manslaughter. Defendant testified that he provided the handgun used by McCatt, who executed one victim and shot the other. The second victim sustained not only gunshot wounds, but he also sustained multiple stab wounds, which the medical examiner found to have contributed to the second victim's death. Because defendant was the only conspirator armed with a knife, the record supports a conclusion that defendant repeatedly stabbed one of the victims. These facts, as well as the conspirators' shared intent of engaging in the dangerous task of robbing what was believed to be a house for stashing drugs, provided ample factual grounds for a determination that defendant acted recklessly and manifested an extreme indifference to human life. N.J.S.A. 2C:11-4(a)(1).