September 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWIN PEREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 98-03-0459 and 01-07-1352.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Winkelstein and Yannotti.
Defendant Edwin Perez appeals from an order entered on December 1, 2005, which denied his petition for post-conviction relief (PCR). We affirm.
In February 1998, defendant was charged under a Hudson County indictment with possession of a controlled dangerous substance (CDS) with intent to distribute the same, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count five); possession of CDS with intent to distribute the same within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count six); possession of CDS, N.J.S.A. 2C:35-10a(1) (count seven); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count nine); and unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3f (count ten).
On June 28, 1998, defendant entered a guilty plea before Judge Kevin G. Callahan to count five, which was amended to charge defendant with conspiracy to distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5. The prosecutor agreed to recommend the dismissal of the remaining charges and imposition of a flat seven-year sentence of incarceration, with forfeiture of the money seized. Defendant did not appear for his sentencing on September 24, 1999. In or about December 2000, defendant was convicted in New York of contempt of court. He was incarcerated for approximately nine months, and was thereafter extradited to New Jersey. In June 2001, defendant was charged with bail jumping, N.J.S.A. 2C:29-7. On July 19, 2001, defendant entered a plea to this offense before Judge Callahan.
Defendant was sentenced on September 7, 2001. Judge Callahan found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge also found defendant's remorse to be a mitigating factor. The judge imposed a seven-year sentence on the drug offense, and a consecutive twelve-month sentence for bail jumping. Defendant did not take a direct appeal challenging these sentences. Defendant was paroled on February 7, 2002. Subsequently, defendant was convicted of a federal drug offense.
On August 16, 2004, defendant filed a petition for PCR. Defendant argued that he was entitled to be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005). He additionally asserted that his trial counsel was ineffective at the sentencing proceeding because he failed to seek findings by the judge of certain mitigating factors. Defendant further claimed that trial counsel erred because he failed to advise defendant that his conviction could result in the enhancement of a sentence imposed for a subsequent federal drug offense. Judge Callahan heard the application on December 1, 2005, and entered an order on that date denying PCR for reasons stated on the record. This appeal followed.
Defendant raises the following contentions for our consideration:
A TRIAL COURT MUST, UNDER THE NEW RULE OF LAW, WEIGH THE AGGRAVATING AND MITIGATING FACTORS UNENCUMBERED BY THE PRESUMPTIVE STATUTORY TERM WHEN SENTENCING THE DEFENDANT.
THE DEFENDANT DID NOT RECEIVE FROM HIS TRIAL ATTORNEY EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENDANT'S TRIAL ATTORNEY DID NOT PROVIDE A MEANINGFUL ARGUMENT AT SENTENCING.
THE TRIAL COURT DID NOT STATE ON THE RECORD AN ADEQUATE REASON FOR IMPOSING A CONSECUTIVE TERM SENTENCE (Not raised below).
THE DEFENDANT IS ENTITLED TO A REMAND FOR THE PCR COURT TO DETERMINE WHETHER HE UNDERSTOOD THE DEVASTATING IMPACT HIS GUILTY PLEA WOULD CAUSE.
We are satisfied from our review of the record that there is absolutely no merit in the contentions advanced by defendant. We affirm substantially for the reasons stated by Judge Callahan in his thorough and comprehensive decision on the record. We add the following brief comments.
Defendant first argues that he is entitled to re-sentencing under Natale. We disagree. The Natale Court held that New Jersey's system of presumptive sentencing violates a defendant's right to trial by jury under the Sixth Amendment to the United States Constitution. Natale, supra, 184 N.J. at 466. The Court eliminated the presumptive terms to bring "our sentencing code into compliance with the dictates of the Sixth Amendment." Id. at 493. The Court ordered new sentencing hearings but limited relief to defendants with cases on direct appeal as of the date of its decision, and defendants who challenged their sentences on Sixth Amendment grounds at trial or on direct appeal. Id. at 494. Here, defendant never raised a Sixth Amendment challenge to his sentences in the trial court and never challenged the sentences on direct appeal. Judge Callahan correctly determined that defendant is not entitled to relief under Natale.
Defendant next contends that he was denied the effective assistance of counsel. Again, we disagree. In considering this claim, the judge correctly applied the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant must show that his attorney's performance was deficient, and counsel's "deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).
Judge Callahan found that trial counsel did not err by failing to urge the judge to find additional mitigating factors. There is ample support in the record for this determination. Here, there was insufficient evidence to show that defendant's incarceration would impose an "excessive" hardship upon his children. N.J.S.A. 2C:44-1b(11). In addition, because defendant fled the jurisdiction before sentencing, a finding that he cooperated with law enforcement would have been particularly inappropriate. N.J.S.A. 2C:44-1b(12). Furthermore, the record did not support a finding that defendant was a "youthful offender" who had been "substantially influenced" by an older person. N.J.S.A. 2C:44-1b(13). The judge observed that, at the time of the offenses, defendant and his co-defendant Elvis Manual Lugo were in their twenties, and there was no indication that defendant was less mature than Lugo, or that Lugo "had any kind of control or sway over [defendant]."
The record also fully supports the judge's determination that defendant was not denied the effective assistance of counsel because trial counsel failed to advise him on the effect that his current drug conviction would have on any subsequent federal drug conviction. Judge Callahan correctly determined that defendant's claim was foreclosed by our decision in State v. Wilkerson, 321 N.J. Super. 219 (App. Div. 1999), where we held that defense counsel's failure to advise his client of the possible or potential "enhancement consequences of future aberrant conduct is not the ineffective assistance of counsel." Id. at 227.
Finally, we reject defendant's assertion that the judge erred by failing to place on the record sufficient reasons for imposing a consecutive sentence for bail jumping. Although the judge could have provided a more detailed explanation for his decision to make the sentence consecutive to the sentence on the drug offense, the imposition of a consecutive sentence was not an abuse of discretion and reflects an appropriate consideration of the relevant factors under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn1 The offenses were committed at different times and in different places and cannot be said to constitute "a single period of aberrant behavior." Id. at 644. Moreover, in these circumstances, a concurrent sentence would have been inconsistent with the principle that "there can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643.
We have considered defendant's other arguments and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).