On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Quadir Allen appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
Defendant pled guilty to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as downgraded from the charge of murder; one count of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and one count of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b. Under the plea agreement, the State was free to recommend that defendant be sentenced to a term of twelve years on the first-degree charge of aggravated manslaughter.
Despite this potential penal exposure, the court sentenced defendant on the charge of aggravated manslaughter to an aggregate term of ten years, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties. The sentencing judge signed the Judgment of Conviction on July 23, 2004. Defendant did not file a direct appeal.
On September 18, 2006, defendant filed a pro se PCR petition arguing that he received ineffective assistance of counsel. Specifically, defendant argued that his trial attorney did not argue for further downgrading of the initial charge of murder to the lesser included charge of second-degree reckless manslaughter. Defendant was assigned counsel to argue this issue after the PCR petition was filed. After considering the argument of counsel, the trial court entered an order on May 11, 2007, denying the PCR petition.
Defendant now appeals raising the following argument.
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF AS HE ESTABLISHED A PRIMA FACIE CASE THAT HIS ATTORNEY WAS INEFFECTIVE FOR FAILING TO ARGUE FOR A DOWNGRADE.
Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As the defendant's own sworn statements in the plea hearing amply demonstrate, defendant killed his victim in a dispute over illicit drug sales. Before seeking out his victim, defendant armed himself with a handgun with the express purpose of confronting him. Once there, defendant shot the victim five to six times. This record does not support a downgrade to reckless manslaughter. Trial counsel's failure to raise a facially untenable argument is not, per se, ineffective assistance of counsel. State v. Cottle, 194 N.J. 449, 460-61 (2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)).