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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...