On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-01-0166.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Lintner and Parrillo.
Defendant Clifford Jeffery appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). For reasons that follow, we remand for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), and affirm in all other respects.
By way of background, tried in absentia by a jury, defendant was convicted on November 14, 2001 of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). He was sentenced on January 14, 2002 to a discretionary extended term, as a persistent offender, N.J.S.A. 2C:44-3(a), of nine years. The nine-year extended term was based on defendant's nine prior convictions as well as the trial judge's findings of aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3),(6),(9), and no mitigating circumstances. On direct appeal, among other issues raised, counsel contended defendant's sentence was manifestly excessive. In a pro se supplemental brief, defendant contended that his enhanced sentence, based on a determination by the trial judge rather than jury of the aggravating and mitigating factors, is a violation of the Sixth Amendment. We affirmed defendant's conviction and sentence. As to the latter, we found: (1) no abuse of discretion because "[t]he judge carefully analyzed . . . [the aggravating and mitigating] factors . . .[;]" and (2) no violation of Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S.Ct. 2348, 2361-62, 147 L.Ed. 2d 435, 454 (2000) because "the fact of a 'prior conviction' need not be found by the jury prior to imposition of an enhanced term based upon a recidivist status." State v. Jefferey,*fn2 A-4060-01T4 (App. Div. June 3, 2003) (slip op. at 11-12), certif. denied, 178 N.J. 29 (2003).
Defendant filed a pro se PCR petition on April 11, 2005, wherein he raised the following issues:
I. TRIAL COUNSEL'S REPRESENTATION WAS SUB- STANDARD THE RIGHT TO COMPETENT COUNSEL IS GOVERNED BY BOTH THE STATE AND FEDERAL CONSTITUTIONS. (U.S. CONST. AMENDMENTS 6 AND 14; N.J. CONST. ART. 1, PAR. 10)
II. THE COURT'S IMPOSITION OF THE SENTENCE ABOVE THE PRESUMPTIVE TERM VIOLATED PETITIONER'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO PROOF BEYOND REASONABLE DOUBT BECAUSE THE AGGRAVATING FACTORS WERE NOT FOUND BY A JURY.
Counsel subsequently filed a supplemental brief raising the following issue only:
Prior Counsel's Failure to Meaningfully Argue the Applicability of Mitigating Factors One and Two and His Concomitant Failure to Argue That the Nature of the Offense (Not the Nature of the Offender) Controls When Determining the Proper Base Term of an Extended Sentence Constitutes Ineffective Assistance of Counsel Because But For the Aforesaid Failures This Court Would Have Imposed a Sentence Less Than a Flat Nine Years State Prison.
At the ensuing hearing, the PCR judge only considered the claim of ineffective assistance of counsel for failing to oppose the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a) and for failing to raise mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1),(2). In rejecting the PCR application, the judge found: (1) the claim was a second veiled attempt to argue excessiveness of sentence and thus procedurally barred, R. 3:22-5; R. 3:22-2(c); State v. Marshall, 148 N.J. 89, 150, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); (2) that trial counsel did attempt to oppose an extended term and did raise mitigating factors one and two; (3) that defendant failed to specify why these factors applied; (4) that these factors were not supported by the record; (5) that even if applicable, "the outcome would have been no different" given the extent of defendant's prior criminal record; and (6) that "there was more than ample evidence . . . to support the finding of an extended term."
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT WAS ENTITLED TO RE-SENTENCING BASED ON HIS DIRECT APPEAL CLAIM THAT HIS SIXTH AMENDMENT RIGHTS WERE VIOLATED DURING HIS ORIGINAL ...