August 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LYNNE C. HOLLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-01-0060.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judge S.L. Reisner and Lyons.
Defendant Lynne Holley appeals from a trial court order dated March 31, 2006, denying her petition for post-conviction relief (PCR). We affirm substantially for the reasons stated by Judge Tomasello in his oral opinion placed on the record on March 20, 2006.
Holley pled guilty to participating in an armed robbery of a movie theater where she was employed. During the robbery, one of her fellow employees was shot in the head and face. Holley admitted that she planned the robbery and provided her co- defendants with the gun. Although Holley, who was indicted for first-degree armed robbery, faced a potential sentence of twenty years in prison, she accepted a plea bargain that called for her to be sentenced as a second-degree offender to a term of seven years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Her co-defendants, who pled guilty earlier than Holley did and agreed to testify against her, received longer sentences. Nonetheless, Holley filed a direct appeal challenging her sentence as excessive. We affirmed the sentence. State v. Holley, No. A-1965-03 (App. Div. June 9, 2004).
Holley then filed this PCR petition, primarily contending that her trial counsel was ineffective in failing to argue for a lower sentence. Judge Tomasello, who had accepted the plea and imposed sentence, denied the petition. In rejecting defendant's contentions Judge Tomasello indicated that even if defense counsel had made all of the arguments Holley now claims counsel should have made, the judge would have imposed the same sentence.
I was the judge who took the plea on this matter. I recall the details of it rather clearly. This was the conspiracy in which this particular defendant was the planner, the brains, behind the operation, wherein there was to be a burglary-theft at a movie theater. Regrettably, one of the janitorial individuals was present. And he was severely wounded. How he didn't die is beyond me.
But Ms. Holley gave a rather lengthy and complete colloquy regarding her involvement. She admitted her involvement. It was a negotiated plea.
I sentenced her to the mid-range and the presumptive at the time. And even if I reviewed those mitigating and aggravating factors and re-balanced them, I'd be more than satisfied that the central point in the guidelines . . . would be the appropriate sentence . . . .
I find no merit in her application with respect to this being either an excessive sentence, or the fact that counsel did not more completely argue aggravating and mitigating factors.
. . . It was an agreement that was very favorable to [defendant] at the time.
I'm satisfied that there was nothing counsel could have done in arguing those mitigating factors in any other fashion that would have dissuaded me from imposing the sentence which I did impose . . . Frankly, I thought she dodged a bullet. Maybe not a bullet so much as . . . a cannon ball.
On this appeal, Holley raises the following arguments for our consideration:
POINT I: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HER TRIAL COUNSEL.
POINT II: THE SENTENCE IMPOSED WAS EXCESSIVE GIVEN THE MULTIPLE MITIGATING FACTORS THAT SUBSTANTIALLY WEIGHED IN THE DEFENDANT'S FAVOR BUT WHICH WERE NOT ARGUED BEFORE THE SENTENCING COURT BY TRIAL COUNSEL.
POINT III: THE SENTENCING COURT GAVE TOO MUCH WEIGHT TO THE AGGRAVATING FACTORS WHILE IMPROPERLY DE-EMPHASIZING THE MITIGATING FACTORS.
POINT IV: THE TRIAL JUDGE SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.
POINT V: THE PLEA AGREEMENT IMPROPERLY REQUIRED THE DEFENDANT TO WAIVE HER RIGHT TO APPEAL (Not Raised Below).
Having reviewed the record, we conclude that Holley's Point V is moot, because she has already appealed her sentence and the prosecution has not sought to revoke the plea bargain. Her argument that her sentence is excessive is barred by Rules 3:22- 4 and -5, because it either was raised or could have been raised on her direct appeal; but in any event the contention is without merit. Her remaining contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). As Judge Tomasello indicated, Holley received a very favorable plea bargain, and none of the arguments she now claims her trial counsel should have advanced would have changed the result. There is no basis on which to find that her counsel was ineffective. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).
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