State of New Jersey v. Irie Y. Simmons

• Court: New Jersey Superior Court Appellate Division
• Decided: November 20, 2025
• Docket: A-3868-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3868-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IRIE Y. SIMMONS,

Defendant-Appellant. _________________________

Submitted October 2, 2025 – Decided November 20, 2025

Before Judges Bishop-Thompson and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 17-04- 0358.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Susan Brody, Designated Counsel, on the brief).

LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Irie Y. Simmons appeals from the June 20, 2024 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

I.

On January 21, 2017, defendant, co-defendant Xavier L. Myers, and

another individual were walking to a light rail station. They encountered Eric

Thomas, with whom defendant and Myers engaged in a verbal argument that

turned into a physical fight. Defendant shot Thomas in the chest, which later

resulted in his death. A Burlington County grand jury indicted defendant for

first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count

two); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b)(1) (count three). Myers was indicted for third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(7) (count four).

On December 8, 2017, defendant pleaded guilty to count one of the

indictment, amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1). In exchange for defendant's guilty plea, the State agreed to dismiss the

remaining counts of the indictment against him and recommend a nineteen-year

A-3868-23 2 sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defense

counsel reserved the right to argue for a lesser sentence.

Prior to accepting the plea, the judge conducted a colloquy with defendant,

who confirmed he knowingly and voluntarily entered into the agreement and

was satisfied with his counsel's representation. Defendant then provided a

factual basis for the aggravated manslaughter charge, and the judge accepted the

plea.

At the February 2, 2018 sentencing hearing, the State asked the judge to

find aggravating factors three (the risk that the defendant will commit another

offense) and nine (the need for deterring the defendant and others from violating

the law). N.J.S.A. 2C:44-1(a)(3), (9). Defense counsel argued for mitigating

factors three (the defendant acted under a strong provocation), four (there were

substantial grounds tending to excuse or justify the defendant's conduct, though

failing to establish a defense), five (the victim of the defendant's conduct

induced or facilitated its commission), six (defendant has compensated or will

compensate the victim of the defendant's conduct for the damage or injury that

the victim sustained, or will participate in a program of community service) , and

seven (defendant has no history of prior delinquency or criminal activity or has

A-3868-23 3 led a law-abiding life for a substantial period of time before the commission of

the present offense). N.J.S.A. 2C:44-1(b)(3), (4), (5), (6), (7).

Defense counsel relied on a sentencing memorandum and read a statement

from defendant. Defendant's grandmother, aunt, sister, and friend also testified

on his behalf.

The judge found aggravating factors three and nine. He gave moderate

weight to aggravating factor three, based on defendant's prior contacts with the

criminal justice system and his admission that he used controlled dangerous

substances (CDS) prior to the incident. The judge afforded substantial weight

to aggravating factor nine, based on the severity of the offense.

The judge found and gave moderate weight to mitigating factors six and

seven because, although this was defendant's first offense as an adult, he

committed two juvenile offenses. The judge rejected the remaining factors

requested by defense counsel, found "the aggravating fact[or]s do slightly

outweigh the mitigating factors on both a qualitative and a quantitative basis, "

and, consistent with the plea agreement, sentenced defendant to nineteen years.

Defendant appealed from his sentence, arguing the judge failed to

consider his age at the time of the incident. We considered the appeal on the

A-3868-23 4 sentencing oral argument calendar and affirmed. State v. Simmons, No. A-

0886-18 (App. Div. Apr. 10, 2019).

Defendant filed a timely petition for PCR, contending counsel was

ineffective and an evidentiary hearing was required to develop a thorough

record. Assigned PCR counsel filed an amended petition, along with a brief in

support of the petition, which the State opposed.

Specifically, defendant argued counsel was ineffective during the

sentencing hearing for failing to sufficiently present all applicable mitigating

factors. He maintained trial counsel did not adequately argue for mitigating

factor four because he did not connect defendant's early childhood trauma with

his adult conduct, or mention defendant had been using CDS prior to the

incident. Defendant also claimed counsel failed to request mitigating factors

eight (defendant's conduct was the result of circumstances unlikely to recur) and

nine (the character and attitude of the defendant indicate that the defendant is

unlikely to commit another offense), as demonstrated by defendant's family

support. N.J.S.A. 2C:44-1(b)(8), (9). He further contended counsel failed to

seek mitigating factor eleven (the imprisonment of the defendant would entail

excessive hardship to the defendant or the defendant's dependents), because his

grandmother needed his assistance. N.J.S.A. 2C:44-1(b)(11).

A-3868-23 5 Defendant also claimed counsel was ineffective for failing to argue the

disproportionality between his sentence and Myers's one-year probationary

term.1 He claimed the sentencing disparity was unjustifiable under State v.

Roach, 146 N.J. 208, 232 (1996).

The judge who presided over the plea and sentencing hearings considered

the PCR petition. After hearing argument, the judge denied the petition without

an evidentiary hearing in a June 20, 2024 order, accompanied by a written

opinion. He opined the petition was "an inappropriate resolution" because it

sought resentencing based on mitigating factors, an issue already decided on

direct appeal. Thus, the judge found the PCR petition procedurally barred.

The judge nevertheless considered the petition on its merits and

determined defendant failed to meet either prong of Strickland v. Washington,

466 U.S. 668 (1984). He noted defendant did not point to specific facts that

supported the finding of additional mitigating factors and, even if counsel had

argued for the factors, defendant failed to demonstrate the outcome would have

been any different. The judge also found defense counsel's failure to argue

1 After defendant was sentenced, Myers pleaded guilty to a disorderly persons simple assault and was sentenced to one year of probation. A-3868-23 6 disparate sentencing was not ineffective, because the difference in sentences was

"indicative of the role each defendant played in [Thomas]'s death."

II.

On appeal, defendant raises a single issue for our consideration:

THE DENIAL OF PCR RELIEF SHOULD BE REVERSED BECAUSE DEFENSE COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE AT SENTENCING.

To succeed on a claim of ineffective assistance of counsel, a defendant

must establish by a preponderance of the evidence both prongs of the test set

forth in Strickland, 466 U.S. at 687, and adopted by our Supreme Court in State

v. Fritz, 105 N.J. 42, 58 (1987). State v. Gaitan, 209 N.J. 339, 349-50 (2012).

First, a "defendant must show that counsel's performance was deficient."

Strickland, 466 U.S. at 687. A defendant must demonstrate "counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Ibid. Because the Constitution requires

"reasonably effective assistance," an attorney's performance may not be attacked

unless it was not "'within the range of competence demanded of attorneys in

criminal cases'" and instead "fell below an objective standard of

reasonableness." Id. at 687-88 (quoting McMann v. Richardson, 397 U.S. 759,

771 (1970)).

A-3868-23 7 When assessing the first Strickland prong, "[j]udicial scrutiny of counsel's

performance must be highly deferential," and "every effort [must] be made to

eliminate the distorting effects of hindsight." Id. at 689. A reviewing court

"must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance," and "the defendant must overcome

the presumption that, under the circumstances, the challenged action [by

counsel] 'might be considered sound trial strategy.'" Ibid. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

Under the second Strickland prong, a defendant must "affirmatively

prove" with "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." State v. Gideon,

244 N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693-94). "A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." Ibid. (quoting Strickland, 466 U.S. at 694).

Because the PCR court denied the petition without an evidentiary hearing,

we review the order de novo. State v. Harris, 181 N.J. 391, 421 (2004). We

also review the decision to deny the petition without an evidentiary hearing for

abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992).

A-3868-23 8 As a threshold matter, we address whether defendant's petition was

procedurally barred. Rule 3:22-5 precludes a petitioner from asserting any claim

for relief that was previously adjudicated on the merits, "whether made in the

proceedings resulting in the conviction or in any post-conviction proceeding

brought pursuant to this rule . . . or in any appeal taken from such proceedings."

Defendant's direct appeal contended his sentence was excessive in light of the

applicable mitigating factors, an argument we rejected on direct appeal.

Simmons, slip op. His PCR petition recasts those contentions as a claim of

ineffective assistance of counsel, which was not adjudicated in his direct appeal.

Therefore, we conclude defendant's petition was not procedurally barred.

Turning to the merits of defendant's petition, he alleged defense counsel

was deficient in the manner he advocated for mitigating factor four and by

failing to argue for mitigating factors eight, nine, and eleven. A court's finding

of mitigating factors is discretionary, see State v. Bieniek, 200 N.J. 601, 609

(2010), and its decision not to apply all those raised by the parties at sentencing

cannot be attributed to defense counsel as constitutionally deficient

performance. A sentencing court "is required to consider all of the aggravating

and mitigating factors and to find those supported by the evidence," regardless

A-3868-23 9 of whether counsel advocates for them. State v. Dalziel, 182 N.J. 494, 505

(2005).

As the judge noted, he determined which mitigating factors were

supported in the record at sentencing. He "consider[ed defendant's] trauma,

youth, and family circumstances in fashioning [defendant's] sentence." The

judge's rejection of mitigating factors four, eight, nine, and eleven were

grounded in his assessment of the facts of the offense and the circumstances of

this case, notwithstanding the advocacy of counsel.

We are also unpersuaded defendant established the second prong of

Strickland, because he could not demonstrate the outcome of his sentencing

would have been different had defense counsel argued differently or for

additional mitigating factors. The sentencing judge imposed a sentence in

accordance with the negotiated plea agreement, which "should be given great

respect, since a 'presumption of reasonableness . . . attaches to criminal

sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super.

61, 71 (App. Div. 1996) (alteration in original) (quoting State v. Sainz, 107 N.J.

283, 294 (1987)). Defendant's petition did not demonstrate he would have

received a lesser sentence had counsel advocated as defendant contends.

A-3868-23 10 Turning to defendant's claim of ineffective assistance based on counsel's

failure to argue for disparate sentencing, the PCR judge noted the sentence

imposed was in accordance with the plea agreement. The difference in the plea

and sentence reflected "the role each defendant played in [Thomas]'s death.

During his plea, [defendant] took ultimate responsibility for [Thomas]'s death,

absolving [Myers]." And because Myers pleaded guilty after defendant had

already been sentenced, defense counsel could not have argued for parity at

defendant's sentencing. Therefore, defendant's petition failed on this point.

Finally, because defendant did not establish a prima facie case for relief,

material issues of disputed fact, or that an evidentiary hearing was necessary,

the denial of his request for a hearing was not an abuse of discretion. R. 3:22-

10(b); see Preciose,129 N.J. at 462-63.

Affirmed.

A-3868-23 11