STATE OF NEW JERSEY v. ANDRELL CHILDS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1116-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDRELL CHILDS,

     Defendant-Appellant.
______________________

                   Submitted March 7, 2022 – Decided March 15, 2022

                   Before Judges Sabatino and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 15-12-
                   1518.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the brief).

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (David M. Liston, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Andrell Childs appeals the trial court's denial of his petition for

post-conviction relief ("PCR") without an evidentiary hearing. We affirm.

      In December 2015, a Middlesex County Grand Jury issued a fifty-seven

count Indictment against defendant charging him with a variety of offenses, the

most serious of which was first-degree attempted murder.            Pursuant to a

negotiated plea agreement, defendant pled guilty in Middlesex County to

second-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1), and two counts of

third-degree burglary,  N.J.S.A. 2C:18-2(a)(1). Under the agreement, the State

recommended a ten-year custodial term, subject to a No Early Release Act

("NERA") parole disqualifier,  N.J.S.A. 2C:43-7.2, on the aggravated assault

charge plus concurrent five-year sentences on each of the burglary charges. The

remaining counts were dismissed.

      At the October 16, 2017 proceeding when defendant entered his guilty

plea, he asked the court to sentence him the same day. As he explained,

defendant made that request so he would not be temporarily transferred to a

county jail and leave the State prison where he had been serving an unrelated

sentence. The court inquired of defendant to make sure he truly wanted to do




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this and waive the creation of a new presentence report ("PSR"). Defendant

assured the court under oath that is what he wanted.

      Accordingly, the court proceeded to sentence defendant, referring to a

recent PSR that had been prepared seven months earlier in connection with a

separate indictment in Somerset County. Defendant's mother addressed the

court and described his mental health challenges, which defense counsel further

punctuated in arguing for leniency. Following those presentations, the judge

imposed a ten-year NERA sentence consistent with the plea agreement.

      Defendant appealed his sentence as excessive, which was argued on the

Sentencing Oral Argument ("SOA") calendar. On April 11, 2018, the SOA

panel issued an order affirming the sentence.        The Supreme Court denied

certification.  235 N.J. 196 (2018).

      In his PCR petition, defendant argued his plea counsel and counsel on

direct appeal were constitutionally ineffective by failing to insist on the issuance

of an updated PSR, which he contends would have documented for the

Middlesex sentencing judge his serious mental health issues. He alleged in a

written certification that his lawyer told him it would be better if he was

sentenced the same day, and he only agreed because he "thought that was what

[his lawyer] wanted."


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      Relatedly, defendant contends his counsel was ineffective by not pursuing

a mental health defense. His arguments were not supported by any affidavits or

certifications attesting to the severity of his mental health issues .

      In August 2020, the trial court rejected defendant's PCR petition, issuing

a seventeen-page written opinion. The opinion quoted key passages from the

plea colloquy at which defendant asked to be sentenced the same day and waived

his right under  N.J.S.A. 2C:44-6 and Rule 3:21-2 to an updated PSR.

      In the present appeal, defendant raises the following point in his brief:

             POINT I

             AS A PRESENTENCE INVESTIGATION AND
             REPORT IS STATUTORILY MANDATED BEFORE
             A DEFENDANT CAN BE SENTENCED, THE PCR
             COURT ERRED WHEN IT DENIED DEFENDANT'S
             CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL
             AND APPELLATE COUNSEL.

      We reject this argument for the sound reasons set forth by Judge Diane

Pincus in her written decision. This is a plain instance of a defendant's invited

error. State v. Jenkins,  178 N.J. 347, 358 (2004). The sentencing judge did

exactly what defendant wanted her to do. Moreover, there is no actual prejudice

to defendant because the sentencing judge clearly considered defendant's mental

health problems as mitigating factors and weighed them against his long

criminal offense history and other aggravating factors.          See Strickland v.

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                                          4
Washington,  466 U.S. 668, 694-96 (1984) (requiring proof of "sufficient

prejudice" to a defendant caused by counsel's deficient performance to find

actual ineffective assistance of counsel). Due to the lack of sufficient prejudice

here, we "need not determine whether counsel's performance was deficient" in

failing to pursue a mental health defense. Id. at 697. In addition, defendant

received a very generous negotiated agreement in exchange for his guilty plea,

which his attorney ably negotiated.

      Affirmed.




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