January 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLEVAS MACINTOSH,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation Nos. 488-99, 489-99, 490-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Wefing and Lyons.
Defendant Clevas MacIntosh appeals the denial of his petition for post-conviction relief (PCR). We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On February 15, 1999, defendant walked up to an individual, who was walking his dog, and demanded money. Defendant then shot the individual in the head. The victim was transported to the hospital where a bullet was removed from his brain. He sustained injuries that left him with impaired vision, reasoning, and memory loss. On the following day, using the same handgun, defendant robbed another stranger at gun point, after demanding the victim's money. He took the money and then ran. Soon thereafter, he was apprehended.
On June 17, 1999, the State filed three accusations charging defendant with armed robbery and the unlawful possession of a weapon. On the same date, defendant pled guilty to the three accusations. On February 8, 2000, defendant moved to withdraw his guilty plea on the grounds that he lacked capacity to understand the proceedings against him. Competency hearings were held on December 14, 2000, and January 4, 2001. On February 13, 2001, the trial court denied defendant's motion to withdraw his guilty plea.
On March 1, 2001, defendant was sentenced on the first accusation, charging him with first-degree robbery, to fifteen years with twelve years and nine months of parole ineligibility, five years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and seven years and six months parole ineligibility under the Graves Act. A similar sentence to run concurrent with the first sentence was entered on the second accusation, charging defendant with first-degree robbery. On the third accusation, the third-degree weapons charge, defendant was sentenced to four years to run concurrent with the other sentences.*fn2
Defendant filed an appeal which, among other points, argued that the court should have given less weight to certain aggravating factors and more consideration to defendant's mental retardation and diminished capacity in fashioning an appropriate sentence. Our court affirmed defendant's conviction and sentence, State v. MacIntosh, No. A-4166-00T4 (App. Div. Nov. 20, 2003) (slip op.), and his subsequent petition for certification to the Supreme Court was denied. State v. MacIntosh, 179 N.J. 373 (2004).
On January 24, 2005, defendant filed this PCR petition. The trial judge heard oral argument on November 15, 2005, and, on December 15, 2005, rendered his oral decision denying the application. The trial court's order was entered on January 3, 2006, and this appeal ensued. On appeal, defendant presents the following arguments for our consideration:
THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S MOTION AS TO THE APPELLANT'S ARGUMENT THAT HIS SENTENCE WAS ILLEGAL.
THE TRIAL COURT COMMITTED ERROR BY NOT FINDING THE TRIAL COUNSEL WAS INEFFECTIVE DURING THE SENTENCE HEARING.
THE TRIAL COURT COMMITTED ERROR BY NOT FINDING THE APPELLANT [SIC] COUNSEL WAS INEFFECTIVE.
THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT AN EVIDENTIARY HEARING.
We will address defendant's arguments seriatim. Defendant argues that his sentence is excessive because the mitigating and aggravating factors were not weighed properly; that the No Early Release Act should not have applied to him; and that because he raised these issues below, he is entitled to "pipeline retroactivity," under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). We note at the outset that the first two issues were raised on direct appeal and, therefore, are not properly brought in an application for PCR relief. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997).
Defendant argues that he should be entitled to "pipeline retroactivity" under Natale. However, Natale holds that "pipeline retroactivity" applies to defendants with cases on direct appeal as of the date of the Natale decision, and to those defendants who raised Blakely claims at trial or on direct appeal. Natale, supra, 184 N.J. at 494. Defendant does not fit within those classifications and is not entitled to resentencing under Natale.
Moreover, the Supreme Court in Natale held that the State's sentencing scheme violated the Sixth Amendment in that it allowed judges to impose sentences beyond the presumptive terms based on factors that had not been determined by a jury or admitted to by defendant at a guilty plea. Natale, supra, 185 N.J. at 471-72. In this case, defendant was sentenced to the presumptive term. Accordingly, we find that defendant's first argument is barred pursuant to Rule 3:22-5, and having reviewed the record, is without sufficient merit to warrant discussion.
Defendant next argues that trial counsel was ineffective during his sentencing hearing and that the trial court erred by not granting his PCR application for that reason. The United States Supreme Court has held that in order for an ineffective-assistance-of-counsel claim to succeed, defendant must first demonstrate that counsel's performance fell below an objective standard of reasonableness and, if that is the case, the defense was prejudiced by counsel's action or inaction. Strickland v. Washington, 466 U.S. 668, 693, 104 St. Ct. 2052, 2067, 80 L.Ed. 2d, 674, 697 (1984). The Court, in addition, requires a finding that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068; 80 L.Ed. 2d at 698. This Strickland standard has been adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
Defendant argues that his trial counsel's efforts were deficient because he did not argue mitigating factor N.J.S.A. 2C:44-1(b)(11), incarceration would present an undue hardship on defendant. Counsel is faulted for not arguing that because defendant suffers from "emotional and mental problems," incarceration would be a greater hardship for him than others. The defense argument is that by having the trial court recognize this additional mitigating factor, the court would have given it great weight and lessened defendant's sentence. In addition, defendant's counsel argues that there were additional mitigating factors which counsel should have advanced, including N.J.S.A. 2C:44-1(b)(4), substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense; N.J.S.A. 2C:44-1(b)(7), defendant's lack of a prior history of delinquency or criminal activity; N.J.S.A. 2C:44-1(b)(13); defendant's conduct as a youthful defendant was substantially influenced by another person more mature than defendant; N.J.S.A. 2C:44-1(b)(12), the willingness of defendant to cooperate with law enforcement; and N.J.S.A. 2C:44-1(b)(11), imprisonment would entail excessive hardship to defendant.
We note at the outset that a number of these mitigating factors could not have been recognized, given this record. Shooting a stranger in the head, while the stranger was walking his dog, does not give rise to mitigating factor four. Factor seven makes mention of no history of a prior delinquency, or criminal record, and in this case, defendant had five prior adjudications of delinquency. The record before this court does not demonstrate any influence exerted by an older, more mature person over defendant. Moreover, there is nothing to indicate that a person who suffers from certain mental impairments would not be appropriately cared for in the prison system.
Lastly, the trial court, which sentenced defendant, made it clear that the actions of defendant in particular outweighed any mitigating factors that could be recognized. Consequently, we fail to see how counsel's failure to raise these mitigating factors would have prejudiced defendant.
Counsel also argues that appellate counsel was ineffective for not challenging the excessiveness of defendant's sentence on appeal. We note that in State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. den., 107 N.J. 642 (1987), we applied to claims of ineffective assistance of appellate counsel the standard for assessing ineffective assistance of trial counsel claims established in Strickland and adopted by the New Jersey Supreme Court in Fritz. Appellate counsel did argue the excessiveness of sentence and our court in its opinion found the sentence "entirely fair." Defendant's argument as to excessive sentence is barred by Rule 3:22-5. Therefore, we find no merit in defendant's argument that had appellate counsel argued for the mitigating factors outlined above, there was a strong likelihood our court would have vacated the sentence and remanded it for resentencing. R. 2:11-3(e)(2). Lastly, defendant argues that the trial court committed error by not granting appellant an evidentiary hearing. We disagree. Our Supreme Court stated:
[I]n determining the propriety of an evidentiary hearing, the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed "in the light most favorable to the defendant." If that inquiry is answered affirmatively, then the defendant is generally entitled to an evidentiary hearing in order to prove the allegations. We observe, however, that there is a pragmatic dimension to the PCR court's determination. If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted. [State v. Marshall, 148 N.J. 89, 158 (1997) (internal citations omitted).]
The trial court in this case clearly stated its findings that defendant's allegations were too vague, conclusory, or speculative to warrant an evidentiary hearing. Given our thorough review of the record, we agree that an evidentiary hearing was not warranted. R. 2:11-3(e)(2).
Accordingly, for the reasons set forth above, we affirm. Affirmed.