June 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIONISIO OSORIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-01-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Sapp-Peterson and Messano.
Defendant Dionisio Osorio appeals from the August 31, 2006, order that denied his petition for post-conviction relief (PCR). He raises the following point on appeal:
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE DEFENDANT'S SENTENCING HEARING.
We have considered this argument in light of the record and applicable legal standards. We affirm.
On January 9, 2002, defendant pled guilty to a single-count accusation charging him with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Pursuant to a plea agreement with the State, defendant was to receive a twenty-year sentence with a ten-year period of parole ineligibility. In addition, the State agreed to dismiss in its entirety Camden County Indictment #1262-04-99, which charged defendant in twenty-five counts with various crimes including murder, felony murder, first-degree robbery, first-degree kidnapping, and other offenses. Defendant admitted that on the date in question, he possessed a kilogram of cocaine and delivered it to another person. During the plea colloquy, defendant acknowledged his knowing and voluntary waiver of his rights to indictment and trial, and further waived any right to appeal from the sentence imposed.*fn1
On February 22, 2002, defendant appeared for sentencing. Defense counsel advised the judge that "two criminal convictions in [defendant's] prior history going back to August and October of 1985 are not him." Counsel further noted, "I don't believe that it has an effect (sic) on the sentencing . . . . It is irrelevant to this matter, . . . but my client asserts it wasn't him." He contended that the "computer system" needed to be corrected "because it might have an impact downstream. Today, it doesn't."
The judge stated, "I agree that it did not affect my agreement or disagreement with the plea bargain," but further noted, "I have considered the fact that there were two minor offenses out of . . . New York . . . ." Defense counsel moved for sentencing "within the plea agreement."
Noting this was defendant's first indictable conviction, though he had been previously convicted for "promoting gambling" and "possession of a gambling record" in 1985, the judge found aggravating factors three, the risk defendant would commit another offense; six, the extent of his prior criminal record and the seriousness of the offenses for which he was convicted; nine, the need to deter defendant and others from violating the law; and eleven, the imposition of only a fine would be perceived as the costs of doing business. N.J.S.A. 2C:44-1(a)(3),(6), (9), and (11). He found no mitigating factors, N.J.S.A. 2C:44-1(b), and sentenced defendant to imprisonment for twenty years with a ten-year period of parole ineligibility.
Defendant did not appeal from his sentence, though he did file a motion for reduction of sentence on January 3, 2003, that was denied as untimely. On May 12, 2005, defendant filed a pro se PCR petition seeking reconsideration of his sentence. An amended verified petition was filed on May 18, 2006, in which defendant argued "that he received ineffective assistance of counsel at sentencing in that his attorney failed to argue any mitigating factors or request that the court consider any sentence for less time than the sentence specified in the plea agreement." Defendant sought an "evidentiary hearing" on his petition, specifically requested "a new sentencing hearing," and noted he was not "challeng[ing] the conviction itself."
The transcript of the PCR hearing reveals that the judge immediately permitted defendant to be called as a witness, apparently foregoing any determination whether an evidentiary hearing was indeed necessary in the first instance. Defendant testified that he fathered six children with his wife and two other women. He claimed he supported them by working and "work[ing] part-time at drugs." He identified copies of money orders he sent to his children from prison reflecting his earnings from jobs he held in the institution. He claimed his wife and children were frequent visitors at the prison. Defendant advised the judge that he was withdrawing any claims he made in his pro se PCR petition, and that he intended to rely solely upon the amended petition filed by his attorney that raised the ineffective assistance claim.*fn2
The motion judge observed that "trial [c]courts ordinarily should grant evidentiary hearings to resolve ineffective assistance of counsel claims if the defendant has presented a prima facie case in support of post-conviction relief." She noted, "I f[ou]nd that there was a prima facie case and permitted a plenary hearing on this issue." She summarized defendant's claim, i.e., that trial counsel "failed to raise mitigating factors at sentence and . . . fail[ed] to argue that aggravating factor six, [defendant's] prior criminal record, should not have been relied upon by the [c]court."
Citing the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), the judge concluded that trial counsel's conduct in challenging the issue regarding defendant's alleged prior convictions was not deficient. She then considered whether trial counsel's failure to urge certain mitigating factors upon the sentencing judge was below professional standards. The judge concluded that even if she "assum[ed] that [defense counsel's] actions were deficient," there was not a reasonable probability that the record would support a finding of mitigating sentencing factors. Thus, it was improbable that "the result of the proceeding would have been different." She denied the PCR petition and entered the order now under review.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland, supra, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'"
Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).
We fail to see why an evidentiary hearing was conducted in this case since the essential arguments defendant raised were squarely contained within the trial record. In other words, it was clear from the sentencing transcript that defendant denied that he was the person involved in two minor 1985 convictions from New York, and that the trial judge cited those two convictions when stating his reasons for imposing sentence. It was also clear that all of the facts regarding the alleged mitigating factors that defendant contended ought to have been raised by trial counsel were in the pre-sentence report. In our opinion, defendant's testimony added nothing to the resolution of the issues presented and was unnecessary.
In any event, we agree entirely with the motion judge that even assuming trial counsel provided ineffective assistance because he 1) failed to object to a finding of aggravating factor six; and 2) failed to argue for the finding of various mitigating factors, it is clear that the outcome of defendant's sentence would not have been different if those arguments were indeed made.
As to the trial judge's inappropriate finding of aggravating factor six, it is clear that defense counsel objected to the inclusion of the 1985 minor gambling offenses in defendant's pre-sentence report, although he conceded that it probably would not affect the sentence. We are hard-pressed to see how trial counsel was ineffective in this regard.
However, even assuming he was, the judge's findings as to two of the other three aggravating factors are unassailable, and, indeed, defendant has not argued otherwise.*fn3 Therefore, defendant would still need to demonstrate that the erroneous inclusion of aggravating factors in the sentencing calculus somehow changed the result to his detriment.
Proper consideration of the claim requires us to decide whether trial counsel's failure to advance at sentencing one or more mitigating factors defendant now contends were applicable demonstrates ineffective assistance that would have changed the result. At the PCR hearing, defendant contended that mitigating factors two, five, seven, and eleven applied. N.J.S.A. 2C:44-1(b)(2), (5), (7) and (11). We agree with the motion judge that even if urged, none of these mitigating factors would have been found by the trial court.
Factor two--that defendant did not contemplate his conduct would cause serious harm--clearly was inapplicable. Defendant acknowledged the delivery of a kilogram of cocaine as part of a wide-scale drug distribution scheme. Thus, this was not a situation in which a drug user was found to be in possession of a small amount of drugs, see e.g. State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002); rather, defendant candidly admitted at the PCR hearing that he sold drugs as a way to make money, and, in this case, the amount of cocaine involved was substantial.
Factor five--that the victim induced defendant's conduct--is simply factually inapplicable, as the motion judge noted. Defendant was indicted for the murder of Juan Azcona, however he did not plead guilty to that crime, and, despite Azcona's acknowledged role as the mastermind of the drug distribution scheme, he was not a "victim" of defendant's crime.
Factor seven--that defendant had "no history of prior delinquency or criminal activity or  led a law-abiding life for a substantial period of time before the" crime--is difficult to assess from this record. The motion judge noted that defendant had indeed been previously arrested in Camden, but the charges had been dismissed in the municipal court. Therefore, even if we assume the 1985 gambling offenses from New York indeed related to someone other than defendant, the trial court would not necessarily have found this mitigating factor. See State v. Torres, 313 N.J. Super. 129, 162 (App. Div.)(finding no error in failure to find this mitigating factor despite lack of adjudication of delinquency on two prior juvenile offenses), certif. denied, 156 N.J. 425 (1998).
Lastly, factor eleven--that defendant's imprisonment would entail an excessive hardship to his dependents--did not apply. Defendant claimed that he worked and supported his family from his salary and the drug-dealing he did on the side part-time. We have no doubt that his dependents would experience some hardship as a result of his incarceration because it would appear he was the primary breadwinner and was paying support to multiple families. However, there is nothing to demonstrate this hardship is any more than that experienced by any family when the source of its primary earning capacity is incarcerated.
In short, we conclude that even if any of these mitigating factors were urged at sentencing, they probably would not have been found by the trial judge. As a result, we agree with the motion judge that the sentencing calculus would not likely have been altered, thus, the sentence imposed would not have been affected.
Defendant also contends that trial counsel's representation was ineffective because he never advanced any argument that the sentence should be less that the bargained-for twenty-year maximum term. In large measure, he relies upon our decision in State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002), for support. We find the argument unpersuasive because in Briggs, we reversed the sentence imposed because the plea agreement specifically forbade defense counsel from requesting any sentence less than provided for by the bargain. Id. at 501-02. Such was not the case here.
We conclude that even if defense counsel requested a lesser sentence, whether the request was related to the improper finding or weighing of aggravating and mitigating factors or not, it was improbable that a lesser sentence would have been imposed. Based upon the discussion above, the aggravating factors would have most likely preponderated over the absence of any mitigating factors. Additionally, defendant had received a significant benefit by striking the plea bargain with the State that limited his exposure to a maximum of twenty years, as opposed to the multiple sentences and periods of parole ineligibility he faced if convicted of the crimes charged in the indictment. Defendant recognized his counsel's efforts in this regard at the time of his plea allocution when he answered that he was "[a] hundred percent" satisfied with his attorney's efforts in securing the plea bargain. In short, defendant received a sentence that was within the statutory range of possible sentences, one he expected to receive because he bargained for it, and one that was not excessive. State v. Soto, 385 N.J. Super. 247, 255 (App. Div.), certif. denied, 188 N.J. 491 (2006). Under all these circumstances, we have little doubt that even if trial counsel had advanced an argument for a lesser sentence, it would not have been accepted.