June 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH SANANGELO, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 00-01-0003 and 00-11-1253.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Payne and Sapp-Peterson.
Defendant Joseph Sanangelo appeals from the May 23, 2006 order denying his petition for post-conviction relief (PCR) in which he alleged ineffective assistance of trial and appellate counsel. We affirm.
The evidence presented at trial disclosed that on August 8, 1999, a concerned citizen informed Officer Bachar Balhar of the Clifton Police Department that a white male driving a white Ford LTD with license number plate ZU-542E had offered to sell him a gun. Officer Balhar knew the citizen from his routine patrol. Upon look-up, the car was traced to defendant, who had an extensive criminal record. Three cars were dispatched to an area near defendant's home where a surveillance was set up. When defendant was observed driving near his residence, he was stopped by the police, who approached him with guns drawn and asked if he had anything illegal in the car. Defendant admitted that the gun was there, and it was found under the driver's seat. Defendant was arrested, and later a grand jury indicted defendant, charging him with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7(b).
Following the trial court's denial of his motion to suppress evidence, a jury convicted defendant of both offenses. In addition to these offenses, defendant also pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), which had been charged in a separate indictment. The State moved, pursuant to N.J.S.A. 2C:43-7, for a discretionary extended term. The court granted the motion and sentenced defendant to an extended term, imposing an aggregate fourteen-year custodial sentence with a four-year parole disqualifier, along with appropriate fines and penalties. We affirmed his conviction and sentence on appeal. State v. Sanangelo, No. A-4674-00T4 (App. Div. Nov. 20, 2002). Defendant thereafter filed a pro se petition for post-conviction relief (PCR), which was later amended after the court assigned counsel to represent him.
In both defendant's pro se petition and the amended petition filed on his behalf, defendant alleged ineffective assistance of trial and appellate counsel. The allegation of ineffective assistance stems from defendant's contention that his trial counsel (1) failed to effectively litigate, at the suppression hearing, a statement he gave to police before being Mirandized;*fn1 (2) failed to seek disclosure of the citizen informant; (3) misadvised defendant as to the consequences of exposure to an extended term; (4) failed to investigate an alibi defense he proffered; (5) failed to honor defendant's request to call Robert Flick as a witness; (6) failed to properly consult with defendant in the preparation of his defense; and (7) failed to seek a discovery order granting the defense an opportunity to inspect and test the gun seized from defendant's vehicle.
Defendant also claims appellate counsel was ineffective because counsel submitted an eleven-page brief that raised only two issues on appeal. After considering the briefs and arguments and conducting an evidentiary hearing at which trial counsel and defendant testified, Judge Guzman denied the PCR petition.
Defendant raises the following points for our consideration:
NO OTHER CONCLUSION CAN BE REACHED BUT THAT [THE] COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
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.
We consider defendant's claims in light of well-settled principles. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); United States v. Cronic, 466 U.S. 648, 655, 104 S.Ct. 2039, 2044, 80 L.Ed. 2d 657, 665 (1984). Our Supreme Court subsequently adopted the Strickland standard in interpreting the right to the effective assistance of counsel under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 51-58 (1987). See also State v. Allah, 170 N.J. 269, 283 (2002).
Measured against these standards, we first address defendant's claim that trial counsel failed to effectively litigate his claim that his statement to police was given without the benefit of Miranda warnings, although he was in a custodial setting when he purportedly made the statement. This issue was raised and rejected on direct appeal. On direct appeal, we also rejected defendant's claim that the identity of the confidential informant should have been disclosed. We therefore decline to revisit these issues.*fn2
Defendant next claims that trial counsel was ineffective because proposed defense witness, Lynn Triola, was not interviewed and would have confirmed that the gun removed from his car belonged to Robert Flick, to whom defendant had loaned his vehicle just hours before the gun was seized. Defendant's conviction for weapons offenses did not require proof that he owned the gun but only proof that he possessed the weapon, actually or constructively. State v. Brown, 80 N.J. 587, 597-98 (1979). According to the State's witness, defendant told police that the gun was in the vehicle. Although defendant, in his testimony, denied making this statement, the jury was free to reject defendant's testimony as lacking in credibility, State v. Brown, 118 N.J. 595, 618 (1990), and find that he knowingly possessed the gun.
Defendant also claims trial counsel was ineffective because he failed to explain the significance of an extended sentence prior to defendant rejecting the State's plea offer, which included a waiver of an extended term. After conducting an evidentiary hearing, Judge Guzman "remain[ed] satisfied that [d]efendant was well aware that he was exposed to and understood the significance of an extended term sentence, both prior to his plea and prior to sentence." Giving due deference to the judge's opportunity to hear and see the witnesses, we are satisfied there is ample evidence in the record to support Judge Guzman's factual findings. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).
As to defendant's claim that appellate counsel was ineffective because counsel only focused upon two issues, in State v. Gaither we stated that the underpinning of Rue*fn3 is the Court's interpretation of [Rule] 3:22-6(d), which requires PCR "counsel [to] advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." R. 3:22-6(d). That mandate does not apply to appellate counsel. Jones v. Barnes, 463 U.S. 745, 753-54, 103 S.Ct. 3308, 3314, 77 L.Ed. 2d 987, 996 (1983).
The United States Supreme Court has held that a defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal. Ibid. Counsel for defendant acknowledges that applying Rue to appellate counsel does not mean that appellate counsel would be required to advance every claim insisted upon by a client on appeal. In her brief, defense counsel "acknowledge[s] that would be contrary to the ethics rules and guidelines requiring an attorney not to raise frivolous claims (i.e. R.P.C. 3.1) and a denial of the discretion afforded appellate counsel so that he/she can construct the most effective argument(s) in favor of the ends desired." [396 N.J. Super. 508, 515-16 (App. Div. 2007)].
Lastly, defendant urges that his sentence to an extended term ran afoul of the Court's decision in State v. Natale, 184 N.J. 458 (2005), because he was entitled to have a jury, not the court, decide whether to impose an extended term. See also Blakely v. Washington, 542 U.S. 296, 313, 124 S.Ct. 2531, 2543, 159 L.Ed. 2d 403, 420 (2004); United States v. Booker, 543 U.S. 220, 226-27, 125 S.Ct. 738, 746, 160 L.Ed. 2d 621, 639 (2005). The Court in Natale, supra, held that imposition of a sentence above the presumptive term, based upon judicial findings other than a prior criminal conviction, violates a defendant's right to jury trial. 184 N.J. at 466. Although under Natale, courts still engage in consideration of aggravating and mitigating factors, the Court eliminated presumptive sentences. The holding in Natale applied to those defendants with cases pending on direct appeal as of the date of the decision, August 2, 2005, and to those defendants who raised a Natale claim at trial or on direct appeal. Defendant's case was not pending on direct appeal as of the date of the Natale decision, nor did he raise the issue before the trial court. Moreover, based upon the Court's more recent decision in State v. Pierce, defendant's claim lacks substantive merit. 188 N.J. 155, 158 (2006) (holding that "sentencing court does not engage in impermissible fact-finding when it assesses a prior record of convictions and determines that a defendant is statutorily eligible for a discretionary extended term as a persistent offender"). Finally, defendant's fourteen-year sentence with a four-year parole disqualifier was less than the fifteen-year pre-Natale presumptive term for a second-degree offense. See N.J.S.A. 2C:43-7(a)(3).
We have considered each of the remaining points raised in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm therefore substantially for the reasons stated in Judge Guzman's thoughtful and comprehensive written opinion of May 23, 2006.