April 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELA SCOTTI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-05-1063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2008
Before Judges Lintner and Alvarez.
This is a petition for post-conviction relief (PCR). Defendant, Angela Scotti, originally entered a plea of guilty to second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, in return for which the State agreed to recommend a term of five years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced pursuant to the plea bargain agreement to a five-year NERA term.
Defendant appealed her sentence contending that it was excessive. Following a hearing on our excessive sentence calendar, we affirmed the sentence as not manifestly excessive, unduly punitive, or constituting an abuse of discretion. An order memorializing our determination was entered on September 20, 2005. Certification was denied January 30, 2006. State v. Scotti, 186 N.J. 245 (2006). On March 2, 2006, defendant filed this PCR, asserting ineffective assistance of counsel, claiming that trial counsel: (1) failed to present any argument at sentencing; (2) did not argue for imposition of a sentence less than the maximum agreed under the plea agreement; (3) did not argue applicable mitigating factors; and (4) did not seek a probationary sentence. She also argued that she received ineffective assistance of appellate counsel for not arguing for a reduction in the sentence imposed.
The motion judge, who also presided at the plea and sentence hearings, denied defendant an evidentiary hearing, noting that defense counsel worked very hard to get the State to reduce its initial offer of a seven-year term with 85% parole ineligibility to the five-year agreed upon maximum. After considering the circumstances of the case in which defendant arranged for her co-defendants to perpetrate an armed robbery on a seventy-four-year-old man, together with her prior record consisting of drug related offenses, the judge concluded that he "would not have, under any circumstances" sentenced defendant to anything less than a five-year NERA term.
On appeal, defendant raises the same arguments:
NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel Was Ineffective In Presenting Mitigating Factors At Sentencing In An Effort To Reduce Defendant's Sentence.
B. Trial Counsel Was Ineffective In Arguing For A Down Grade Of One Degree.
THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING TO ADDRESS ALL OF DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL
THE COURT BELOW VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Initially, we note that in addition to making the same arguments that were unsuccessful in the Law Division, defendant asserts that she was entitled to an evidentiary hearing on her claim that her counsel's representation of her at sentencing was ineffective. She also argues for the first time on appeal that both trial and appellate counsel's failure to argue for a lesser sentence represented cumulative error and the judge violated her constitutional rights by imposing an extended term.
Defendant received the minimum second-degree NERA term, not an extended term as asserted in Point IV of her appellate brief. Ordinarily, an excessive "'sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction.'" State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988) (quoting State v. Clark, 65 N.J. 426, 437 (1974)), certif. denied, 115 N.J. 78 (1989). Moreover, PCR is precluded where the issue is substantially equivalent to that previously decided on direct appeal. R. 3:22-5; State v. Afanador, 151 N.J. 41, 51 (1997). Indeed, contrary to defendant's contention, she raised and we determined on direct appeal that the sentence imposed was not excessive.
Although excessive sentence normally can be raised only on direct appeal from the conviction, that rule may be, and has been, relaxed in certain egregious circumstances. Clark, supra, 65 N.J. at 437 (1974). To be sure, any rule may be relaxed if adherence to it would result in an injustice. R. 1:1-2. However, that is not indicated here. We are satisfied, after considering defendant's contentions and supporting arguments, that her sentence was not excessive and her claim that she received ineffective representation of counsel during sentencing and on direct appeal is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
© 1992-2008 VersusLaw Inc.