March 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFONSO J. ORTIZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 94-09-1404-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Wefing and Lyons.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Late one night in January 1994, defendant and two companions attacked a man on a street in New Brunswick. Their victim died from his injuries. Defendant was fifteen at the time of this assault and was originally charged as a juvenile with offenses which, if committed by an adult, would constitute robbery, N.J.S.A. 2C:15-1, and felony murder, N.J.S.A. 2C:11-3(a)(3). A waiver hearing was held at which defendant's mother and sister testified, as well as a correctional social worker. At the conclusion of the hearing, the court found that the State had met its burden. The case was referred to the Law Division, and defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
Defendant entered a negotiated plea of guilty to an amended charge of aggravated manslaughter, and the State agreed to recommend a custodial term of thirty years in prison, with a fifteen-year period of parole ineligibility. In January 1995 the trial court sentenced defendant in accordance with the State's recommendation.
Defendant appealed his sentence, and his appeal was heard on an Excessive Sentence Oral Argument calendar. After considering the arguments presented, we affirmed defendant's sentence as not excessive and not an abuse of the court's sentencing power. State v. Ortiz, No. A-4567-95T4 (App. Div. Oct. 16, 1996). Defendant petitioned the Supreme Court for certification, but his petition was denied. 149 N.J. 33 (1997).
In April 1998 defendant filed a motion for a reduction in his sentence. The court declined to hear his application as it was untimely under Rule 3:21-10(a).
In September 1998 defendant filed a petition for post-conviction relief. Counsel represented defendant in connection with this petition and argued that defendant's trial attorney had been ineffective for failing to put before the court at sentencing several mitigating factors. The trial court denied defendant's petition. Defendant appealed to this court, and we affirmed. State v. Ortiz, No. A-1746-00T4 (App. Div. July 12, 2002). Defendant petitioned the Supreme Court for certification, but his petition was denied. 175 N.J. 76 (2002).
In February 2005, more than ten years after defendant's conviction, he filed a second petition for post-conviction relief. Counsel was again assigned to represent defendant. Defendant argued that his counsel had been ineffective at various stages of the proceeding, including the waiver hearing, at sentencing, on appeal, and on his initial petition for post-conviction relief. After hearing oral argument, the trial court denied defendant's petition. This appeal followed.
Defendant presents the following arguments on appeal:
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Waiver Hearing Representation
B. Representation by Counsel Assigned to the Plea and Sentencing Proceedings
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE AND POST-CONVICTION RELIEF COUNSEL.
DEFENDANT IS ENTITLED TO RESENTENCING PURSUANT TO STATE V. NATALE, BECAUSE HIS 30 YEAR SENTENCE, WHICH EXCEEDED THE PREVIOUSLY-EFFECTIVE PRESUMPTIVE TERM FOR DEFENDANT'S CONVICTION BY TEN YEARS AND WAS BASED ON JUDICIAL FACT-FINDING APART FROM THE MERE FACT OF A PRIOR CONVICTION, WAS UNCONSTITUTIONAL.
EXCUSABLE NEGLECT EXISTS FOR FILING THE INSTANT PETITION FOR POST-CONVICTION RELIEF BEYOND THE FIVE YEAR LIMIT.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.
We elect not to address the question whether defendant established excusable neglect so as to remove himself from the five-year bar for petitions for post-conviction relief contained in Rule 3:22-12(a). We deem it preferable to deal with the merits of defendant's petition. Our decision in this respect should in no way be construed as a willingness to adopt a similar approach in the future in other matters. That we have chosen to deal with the merits of defendant's petition does not, however, entitle him to relief.
The test for establishing whether a defendant has been deprived of the effective assistance of counsel is well known. A defendant must overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984). A defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. "The defendant must show that there is 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 694. If, on the other hand, counsel's performance is so deficient that it "fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that make the adversary process itself presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed. 2d 657, 668 (1984). Our Supreme Court has expressly adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
These settled principles "apply equally in the context of juvenile waiver proceedings." State v. Jack, 144 N.J. 240, 248 (1996).
[A] juvenile claiming the ineffective assistance of waiver counsel must show that expert or otherwise qualified testimony was available to establish a specific plan of rehabilitation such that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." [Id. at 254 (citations omitted).]
We note initially that the performance of defendant's counsel at his waiver hearing cannot be considered the equivalent of the performance of counsel considered by the Supreme Court in Jack, supra. In that case, the defendant's attorney presented no psychiatric or psychological evidence and called no witnesses at the waiver hearing. Id. at 247. His argument consisted of a summation which appeared only to challenge the venue of the hearing. Ibid.
Here, as we have previously noted, defendant's counsel called his mother and his sister to testify, as well as a correctional social worker. Additionally, he gave a strong summation on defendant's behalf, pointing out to the court those pieces of evidence supporting his contention that defendant should not be referred to the Law Division for prosecution.
Defendant now contends that his counsel at the waiver hearing was ineffective for not calling Felicia Oliver-Smith, M.D., a psychiatrist, and Charles L. Reid, Psy.D., a psychologist. Both Dr. Oliver-Smith and Dr. Reid examined defendant in connection with the waiver hearing and prepared reports. Defendant contends that if his attorney had called these two individuals to testify, their testimony would have served to rebut the presumption of waiver. We are unable to agree.
We have carefully studied the reports prepared by Dr. Oliver-Smith and Dr. Reid and find nothing within them which would support defendant's argument. Indeed, certain comments within the reports could have been detrimental to defendant's position. Further, the transcript of the waiver hearing indicates that the State urged the trial court to consider those reports as it weighed the evidence to reach a decision. Thus the information that defendant contends his counsel should have submitted to the trial court was, in fact, before it. Defendant's claim that his waiver counsel was ineffective fails.
Similarly, we reject defendant's contention that the attorney who represented him in connection with his plea and sentencing were ineffective. Defendant was facing charges of murder and felony murder. If convicted, he faced spending a minimum of thirty years in prison. We decline to fault counsel, who was able to negotiate a plea to aggravated manslaughter, with a thirty-year prison term but only fifteen years of parole ineligibility.
Defendant's contention that his attorney was ineffective at sentencing does not require discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2). Those factors to which defendant now points do not constitute mitigating factors within the scope of N.J.S.A. 2C:44-1(b). Our conclusion that defendant's waiver, plea and sentencing counsel were not ineffective disposes substantively his contention that the attorneys who represented him on appeal and in connection with his initial petition for post-conviction relief were also ineffective. Finally, there is no merit to his assertion that he is entitled to be resentenced under State v. Natale, 184 N.J. 458 (2005). The principles announced in Natale are applicable to cases at trial or on direct appeal at the time Natale was decided. Id. at 494. Defendant's matter does not fit within that window.
The order under review is affirmed.
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