On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-09-1234.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Payne and Sapp-Peterson.
Defendant Lea Little was indicted on two counts of first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) and (2), and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3. Pursuant to a negotiated plea agreement, defendant pled guilty on February 3, 2003 to second-degree robbery, N.J.S.A. 2C:15-1. In exchange for defendant's guilty plea, the State agreed to recommend, at sentencing, a seven-year custodial sentence with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility to be served concurrently with the sentence defendant was already serving and concurrently with any sentence defendant would receive in connection with the violation of probation charges that were pending. At sentencing, defendant urged the court to sentence her as a third-degree offender, which would expose defendant to a sentencing range from three to five years. Judge Almeida found, as aggravating factors, the risk that defendant would commit another offense (N.J.S.A. 2C:44-1(a)(3)), the extent of defendant's prior record (N.J.S.A. 2C:44-1(a)(6)), and the need to deter defendant, (N.J.S.A. 2C:44-1(a)(9)). The judge found no mitigating factors. He sentenced defendant, in accordance with the plea agreement, to an aggregate term of seven years imprisonment, eighty-five percent to be served without parole.
The court also imposed two concurrent four-year custodial sentences on the third-degree probation violations, and another concurrent one-year custodial sentence on the fourth-degree violation of probation.
Defendant sought reconsideration of the sentence. She argued that the sentence imposed would cause undue hardship to her children and that her conduct was motivated by her drug dependency. The judge denied reconsideration. On appeal before the Excessive Sentencing Panel, defendant raised the same arguments. We rejected those arguments and affirmed the sentence imposed. State v. Lea Little, A-6873-025T4 (App. Div. Jan 7, 2004). Defendant next filed a petition for post-conviction relief (PCR), arguing ineffective assistance of counsel due to trial counsel's failure to argue certain mitigating factors. She also claimed that she was entitled to an evidentiary hearing. Judge Lebon denied relief, specifically finding,
It is apparent to me that Ms. Little has had more than adequate opportunity to have all of the issues with regard to her sentence litigated at the time of the original hearing and at the time of the motion for reconsideration and, finally, on the Excessive Sentencing Oral Argument calendar.
The defendant in this case has not established a prim[a] facie claim because there is not sufficient evidence to suggest that counsel made errors so serious that he was not fulfilling his role as counsel under the Sixth Amendment. The argument is made that there are other mitigating factors that should have been raised, but once again, there were a number of mitigating factors that were brought to the Court's attention and Judge Almeida simply rejected them. But this does not present a prim[a] facie case and her application for an evidentiary hearing . . . is denied. The defendant in the matter has not established that counsel was ineffective in his representation of her. She seems mostly to be complaining about the sentence that was imposed. While her counsel's arguments may have failed, they were certainly within the range of reasonable representation in arguments to the Court. The defendant's representation in this court at the plea and at the Appellate level did not constitute ineffective assistance of counsel and, as a result, the defendant's motion for post-conviction relief is denied.
On appeal from the denial of her PCR petition, defendant presents the following arguments:
PETITIONER-APPELLANT'S SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING SINCE THE POST-CONVICTION COURT ERRED IN NOT FINDING TRIAL AND APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO APPROPRIATELY PRESENT CERTAIN MITIGATING FACTORS RELATING TO INTOXICATION AT THE TIME OF THE CRIME AND "HARDSHIP" ON DEPENDANTS.
THE POST-CONVICTION COURT ERRED IN FINDING THAT THE WITHIN PETITION WAS BARRED AS PREVIOUSLY ...