October 15, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERT SMALLWOOD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-1404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 28, 2007
Before Judges Payne and Messano.
Defendant, Albert Smallwood, appeals from an trial court order denying his petition for post-conviction relief (PCR) without a hearing. On appeal, he raises the following arguments:
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED BECAUSE INEFFECTIVE ASSISTANCE OF COUNSEL MANDATED THAT HIS SENTENCE BE VACATED AND HIS MATTER BE REMANDED FOR RESENTENCING.
A. Counsel Failed To Present An Adequate Disparity Argument At Resentencing.
B. Counsel Failed To Request An Updated Presentence Report For Defendant's Resentencing.
After reviewing defendant's arguments in light of the record on appeal and applicable precedent, we affirm.
Defendant was convicted by a jury in 2001 of first-degree conspiracy to commit armed robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; first-degree carjacking, in violation of N.J.S.A. 2C:15-2; fourth-degree possession of a weapon, a baseball bat, under circumstances not manifestly appropriate for its lawful use, in violation of N.J.S.A. 2C:39-5d; third-degree attempted theft of a motor vehicle, in violation of N.J.S.A. 2C:5-1 and 2C:20-3; and the lesser-included offense of purposely or knowingly causing bodily injury with a deadly weapon, in violation of N.J.S.A. 2C:12-1b(2). The jury did not find grounds for imposition of the period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Evidence at trial demonstrated that defendant was a planner and get-away driver for a Middlesex County armed robbery and an attempted carjacking, in which the victim was viciously beaten with a BB-gun by Alvin Blankson and with an aluminum baseball bat by Payee Dayee, as well as being kicked in the ribs. Defendant was the owner of the bat. The victim's injuries included three broken ribs, a punctured lung, and a head laceration requiring stitches. Following the attack, she was placed in an intensive care unit for four days and was hospitalized for approximately one week. The carjacking was unsuccessful, since neither Blankson nor Dayee was able to operate the car's manual transmission. Both Blankson and Dayee pled guilty to various crimes and testified against defendant at trial, as did Tarrion Togbah and Sundaygar Edwards, two juveniles who also were occupants of the get-away car. All participants in the crimes with the exception of defendant entered pleas of guilty to various charges prior to defendant's trial.
Following trial, defendant was given concurrent custodial sentences of fifteen years for the armed robbery and twenty-five years with ten years of parole ineligibility for the carjacking. The remaining charges were merged and dismissed. In sentencing defendant, the trial judge considered the sentences imposed upon the crimes' other perpetrators who had pled guilty, determining that there "should be some parity between the sentences of Mr. Smallwood and Mr. Blankson since the court has come to the conclusion that they were the two leaders and the people who were most involved in this."
However, the judge recognized that Blankson's case differed somewhat because he had taken advantage of a plea offer, whereas defendant had chosen to go to trial, as was his right, and was subject to the jury's verdict. Blankson, the judge stated, had been sentenced to twenty years in custody, subject to the eighty-five percent parole ineligibility period of NERA, after pleading guilty to two charges of carjacking: the one in Middlesex and one in Union County.*fn1 Dayee, a juvenile with no prior convictions, had been sentenced to twelve years, subject to NERA. The two other juveniles, whose involvement in the crimes was more marginal, had received lesser sentences. Togbah had received a sentence of five years, and Edwards had been sentenced to two years in custody.
On appeal, defendant's arguments with respect to his conviction were rejected. State v. Smallwood, No. A-527-01T4 (App. Div. April 11, 2003).*fn2 However, his case was remanded for resentencing because of the court's consideration of an inapplicable aggravating factor. A disparate sentencing argument was rejected as not cognizable on the record presented. We stated:
We are unable to assess Smallwood's disparate sentencing argument, since we lack any knowledge of the basis for the sentences imposed, including knowledge of any prior record of crimes committed by the individuals with whom Smallwood invites comparison. Additionally, we cannot forecast what sentence will be imposed upon Smallwood at time of re-sentencing. We note, however, that Smallwood's present sentence is effectively shorter than that of Blankson, the other defendant found by the trial judge to have been a principal, because of Smallwood's shorter period of parole ineligibility. Thus the disparate length of their overall sentences appears somewhat inconsequential. [Id. (slip op. at 10).]
On remand, counsel for defendant renewed the disparate sentencing argument in the following colloquy:
[COUNSEL]: I would also ask you to look to the sentences received by the co-defendants. Mr. Blankson and Mr. Dayee each were given sentences where the total number of years is less than Mr. Smallwood. Mr. Smallwood, who never got out of the car, who never inflicted any injury, got 25 years. Mr. Blankson who inflicted the first blow with a gun got 20 years with N.E.R.A.
THE COURT: So that means he has to serve 17.
[COUNSEL]: Yes. I'm talking about the back number now. Mr. Dayee who hit the victim with a bat got 12 years with N.E.R.A., and . . . the parole ineligibility is roughly the same as the parole ineligibility that Mr. Smallwood got except he has double -
THE COURT: It's a little more. It's about ten years and two months.
[COUNSEL]: He got two months more before being eligible for parole but has 13 years less before he maxes out.
THE COURT: They were plea bargains?
[COUNSEL]: Yes. I don't think Mr. Smallwood should be punished for exercising his constitutional right by having a trial.
THE COURT: He won't be punished by it but anybody who enters into a plea agreement is going to get something better than what the presumptive sentence*fn3 is in the case otherwise there's no incentive for a plea agreement so the other two people who exercised their right took advantage of the plea offer by the prosecutor and got what they got. Your client went to trial and was found guilty.
[COUNSEL]: At the end of the day, Mr. Smallwood got sentenced to 13 more years than one of the active participants, one of the people with a weapon who beat this woman. I just think regardless of the fact that was a plea agreement and one was a trial I do not see the fundamental fairness of that, your Honor. . . . I think 25 years with a ten year period of parole ineligibility is too much.
The sentencing judge rejected counsel's argument and resentenced defendant to the same term that had been previously imposed, finding aggravating factors two (the seriousness of the harm inflicted on the victim), three (the risk of reoffense), six (the extent of defendant's prior record), and nine (need for deterrence). N.J.S.A. 2C:44-1a(2), (3), (6), and (9). Although defendant was properly informed of his right to appeal from the sentence, no appeal was taken.
Instead, defendant filed a PCR petition, in which he claimed ineffective assistance of trial and appellate counsel, who, he alleged, failed to properly argue the disproportionate nature of defendant's sentence, failed to argue for preparation of a new pre-sentence investigation report prior to the resentencing hearing, and failed to properly argue the balancing of aggravating and mitigating factors. The petition was considered by the resentencing judge and denied after oral argument. The judge found that, when periods of parole ineligibility were considered, defendant was likely to serve less time than Blankson, and thus the punishment imposed on him was not disparate; that a new presentence investigation report was not required upon resentencing because defendant had spent the intervening time in prison; and that the aggravating factors identified as supporting the sentence were appropriately chosen and could not be balanced by mitigating factors, which were nonexistent. The present appeal followed.
On appeal from the denial of post-conviction relief, defendant again asserts his disparate sentencing argument, cloaking that argument in the rubric of ineffective assistance of counsel. The State, in response, argues that defendant is merely claiming that his sentence is excessive, and that such a claim cannot be asserted in a PCR proceeding. It notes that, although R. 3:22-2(c) permits challenge by means of a PCR petition from a "sentence in excess of or otherwise not in accordance with the sentence authorized by law," that provision has been construed to be inapplicable to sentences that are claimed to be excessive, but are within legal limits. See State v. Clark, 65 N.J. 426, 436-37 (1974)(noting principle); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971). Defendant's sentence of twenty-five years in custody with a ten-year parole disqualifier in a case in which serious bodily injury was inflicted was unquestionably within such legal limits, and indeed, was five years less than the maximum that the law allows. See N.J.S.A. 2C:15-2b; State v. Henry, 323 N.J. Super. 157, 164-65 (App. Div. 1999); State v. Zadoyan, 290 N.J. Super. 280, 291-92 (App. Div. 1996). Viewed independently of any sentence imposed upon Blankson, the term to which defendant was sentenced was clearly within the court's discretion. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).
Moreover, we perceive no support for defendant's claim that sentencing and PCR counsel were ineffective in advancing a disparate sentence argument. In order to prevail on such a claim, defendant must establish not only that counsel's performance was deficient, but also that counsel's errors were so serious as to deprive defendant of his rights. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Here, however, disparate sentencing was addressed at the outset by the initial sentencing judge, and disparate sentencing arguments were advanced at every stage of the proceeding thereafter: on appeal, on resentencing, and in connection with defendant's PCR petition. In these circumstances, we have no grounds to conclude that counsel's performance was so deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
Strickland's second prong is, likewise, unmet as the result of insufficient evidence that defendant's sentence, although within legal guidelines, was unduly disparate from those of the other participants in the crimes at issue under the standards established in State v. Roach, 146 N.J. 208, 232-34 (1996). In resentencing defendant, the sentencing judge recognized that as the result of the eighty-five percent parole disqualifier imposed upon Blankson, the other adult principal in the events, the "real time" likely to be served by Blankson would exceed that of defendant by seven years.*fn4 We have previously recognized that, when evaluating sentencing disparity, it is appropriate to evaluate the sentences imposed in terms of such "real time." State v. Salentre, 275 N.J. Super. 410, 425 (App. Div.), certif. denied, 138 N.J. 269 (1994). Further, principles of sentencing parity are not violated when consideration is given to cooperation with law enforcement authorities, as occurred here. State v. Gonzalez, 223 N.J. Super. 377 (App. Div.), certif. denied, 111 N.J. 589 (1988). That Blankson's sentence was the product of a plea is likewise a legitimate consideration. Grecco v. O'Lone, 661 F. Supp. 408, 416 (D.N.J. 1987). As a consequence, we discern no evidence of excessive disparity that counsel's advocacy could reasonably have been expected to cure, and thus we reject defendant's ineffective assistance argument insofar as it is based upon sentencing disparity grounds.
We find insufficient merit in defendant's further argument that counsel was ineffective in not requiring a new presentence investigation report at the time of resentencing to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant remained in custody continuously from the time of the first imposition of sentence to the time of resentencing. It is thus unclear what benefit a new report would have provided. Contrary to defendant's legally unsupported argument, the nature of his conduct in prison is relevant to parole, and not to the term of his sentence.