Opinion
DOCKET NO. A-4503-13T4
02-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LESLIE NELSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 95-06-1468. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. She argues that she is entitled to an evidentiary hearing on her claim that her attorneys rendered ineffective assistance of counsel at sentencing. We affirm substantially for the reasons set forth in the written opinion of Judge Terrence R. Cook.
Defendant was indicted on multiple counts arising from the shooting deaths of Officer John Norcross and Investigator John McLaughlin and the wounding of another officer. Defendant entered guilty pleas to two counts of first-degree murder (counts one and two) and to one count of second-degree aggravated assault that had been amended from first-degree attempted murder (count three) pursuant to a plea agreement in 1997. The plea form stated,
In the event of a non-death penalty verdict, the State will recommend a sentence on [counts] one & two a sentence of life imprisonment with 30 years without parole consecutive. On [count] 3 in court's discretion.
[Emphasis added.]
A penalty trial was conducted, resulting in a death verdict for the murder of Officer Norcross (count two). In addition to the death sentence on count two, the original sentence included consecutive sentences of life with thirty years' parole ineligibility on count one and ten years with five years' parole ineligibility on count three. After her death sentence was vacated, State v. Nelson, 155 N.J. 487 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999), a second penalty trial resulted in a death sentence that was also reversed by the Supreme Court. State v. Nelson, 173 N.J. 417 (2002). Eventually, in 2007, defendant was sentenced on count two to a life sentence with a thirty-year period of parole ineligibility to be served consecutive to the sentences previously imposed on counts one and three.
In 2012, defendant filed a pro se PCR petition, which was succeeded by an amended verified petition and brief submitted by counsel. In defendant's pro se brief, she alleged her trial counsel was ineffective for failing to argue in favor of a concurrent sentence; that the sentencing court violated her rights by denying her request to waive her appearance at sentencing; and that she was entitled to re-sentencing because the court relied upon an outdated presentence report and did not provide her with an opportunity to dispute errors in the report. Additional arguments of ineffective assistance were presented through counsel: failure to object to victim impact statements from the family of Investigator McLaughlin, for whose death she had already been sentenced; failure to present argument or evidence in mitigation for defendant; failure to prepare defendant for allocution; failure to review the presentence report with defendant; failure to present reports regarding defendant's mental health to the court; and failure to advocate on behalf of defendant at sentencing. Defendant also alleges her appellate counsel was ineffective in her appeal, which was limited to her sentence, because he acknowledged the sentence imposed was appropriate.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such 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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
In an extensive written opinion, Judge Cook addressed each of defendant's claims of ineffective assistance. The judge observed that defendant was aware, based on her plea agreement, that a consecutive sentence would be imposed and she was unable to present prima facie evidence that an argument for a concurrent sentence would have been successful. The judge noted that the sentencing judge had conducted a detailed analysis of the factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), which supported the imposition of a consecutive sentence. Judge Cook concluded that because an argument for a concurrent sentence would have been unsuccessful, defendant could not satisfy the second prong of the Strickland/Fritz test.
Judge Cook also addressed defendant's arguments regarding counsel's failures to: provide mental health records to the court, review the presentence report, advise defendant of the importance of allocution and object to victim impact statements. He found these arguments were procedurally barred pursuant to Rule 3:22-4, but addressed their merits nonetheless and found them lacking. We agree.
We note that the sentencing judge's statement of reasons explicitly refers to his review of reports of defendant's mental health issues. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION