March 31, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERICK C. FITCH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, 03-12-0529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges A. A. Rodríguez and Payne.
Defendant, Frederick Fitch, was charged in a fourteen-count indictment with various first-, second- and third-degree sexual offenses, third-degree endangering the welfare of a child, fourth-degree aggravated assault with a firearm, and second- degree possession of a weapon for an unlawful purpose. He pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. In providing a factual basis for his plea, defendant admitted that in the period from June 1997 to June 2000, he committed digital or penile penetration on R.L.B., a child under the age of thirteen and that he committed criminal sexual assaults on A.J.B. and R.S.B. during varying time periods by touching their private parts for his own sexual gratification. A.J.B. and R.S.B. also were under the age of thirteen when the illegal acts occurred. With respect to the weapons charge, defendant admitted that he pointed a handgun, a 357 magnum, at "Wendy," with the intent to frighten her. Defendant was sentenced, pursuant to the plea agreement, to concurrent terms of thirteen years on the first-degree charge and seven years on the second-degree charges, all subject to the 1997 version of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, we found the NERA component of defendant's sentences for first- and second-degree sexual assault to be illegal, and we remanded the matter for resentencing. We affirmed the sentence for possession of a weapon for an unlawful purpose. Upon resentencing by the initial sentencing judge, the same custodial terms were imposed, but the periods of parole ineligibility specified by NERA were removed from all sentences except the sentence for possession of a weapon for an unlawful purpose. Defendant remains incarcerated in the Adult Diagnostic and Treatment Center at Avenel.
Defendant did not file a further appeal, but instead, brought a petition for post-conviction relief (PCR) in which he claimed that counsel was ineffective for not arguing that the application of mitigating factors warranted a reduction of defendant's sentence for his first-degree crime to ten years and for not arguing the inapplicability of NERA to the charge of possession of a weapon for an unlawful purpose. The motion judge denied defendant's petition, as well as his request for an evidentiary hearing.
Upon appeal from the denial of PCR, defendant argues:
COUNSEL AT TRIAL AND COUNSEL AT RESENTENCING WERE INEFFECTIVE FOR FAILING TO ARGUE FOR A LESS THAN PRESUMPTIVE TERM IN THE FACE OF THE COURT'S FINDING THAT MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE SOLE AGGRAVATING FACTOR.
DEFENDANT ARGUES THAT THE APPLICATION OF NERA TO HIS CONVICTION FOR POSSESSION OF A WEAPON WAS ILLEGAL AND IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL TO FAIL TO ARGUE ITS LEGALITY.
DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING A REMAND FOR AN EVIDENTIARY HEARING.
Following our review of the record in light of defendant's arguments and applicable legal precedent, we affirm.
As an initial matter, we reject the defendant's argument that counsel at sentencing and resentencing were ineffective because they failed to argue for imposition of less than the presumptive term. That argument was premised upon the assertion that the judge had found that the mitigating factors substantially outweighed the sole aggravating factor found to exist. However, such a finding was not made by the sentencing judge at either of the sentencing proceedings. At defendant's initial sentencing, the trial judge found to be present aggravating factor nine, the need for deterrence. N.J.S.A. 2C:44-1a(9). He found as mitigating factors four, determining that the ADTC psychologist's findings of repetitive and compulsive behavior provided grounds tending to excuse "somewhat" but "not entirely of course" defendant's conduct; seven, as the result of defendant's lack of a prior criminal record; and ten, observing that but for "the seriousness of these offenses, a gentleman with no prior arrest record would have been a good candidate for probation," but "not in this instance for the reasons that are obvious." See N.J.S.A. 2C:44-1b(4), (7) and (10). The judge then sentenced defendant as we have previously described, declaring that the negotiated sentence was "fair and in the interest of justice."
Contrary to defendant's assertion, the judge did not explicitly weigh the aggravating factors against the mitigating factors. Nonetheless it is clear from the record that the judge did not place significant weight upon mitigating factor four, finding that defendant's mental condition only "somewhat" excused his conduct. Further, because the judge found the applicability of factor ten to have been qualified by the seriousness of defendant's offenses, he could not have given that factor very much weight, either. Thus, although the three mitigating factors numerically exceeded the single aggravating factor, the record does not support defendant's contention that the former "substantially outweighed" the latter. Upon resentencing, the judge found the same aggravating factors that he had found initially, and he imposed the same custodial terms, declaring the sentence to be "fair." Thus, grounds for an argument that the negotiated sentence was excessive do not exist, and counsel cannot be faulted for failing to make such an argument either at the time of initial sentencing or at resentencing.
The transcript of the PCR hearing in the matter further supports our conclusion that defendant did not receive ineffective assistance of counsel in connection with the sentencing proceedings. The motion judge's determination to deny post-conviction relief was governed, as a legal matter, by the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 688, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
At the hearing, the same presiding judge concluded that if he were to conduct yet another sentencing proceeding, he would find the same aggravating and mitigating factors. However, he observed that he would give mitigating factor four only "slight weight." Additionally, the judge acknowledged that the application of factor ten to defendant was "a little bit of a stretch," and he suggested that "because of the serious - I can't emphasize that enough - the serious nature of these offenses occurring over years and years of abuse," the judge's finding of this factor was a stretch indeed. Again, the judge failed to find that the mitigating factors outweighed to any degree the sole aggravating factor established in this case. Further, and significantly, the judge concluded that any additional arguments by counsel would have been unlikely to change the sentence imposed. The record thus amply supports the judge's conclusion that neither prong of the Strickland standard was met by defendant in this case.
Defendant's argument that NERA is inapplicable to the charge of possession of a weapon for an unlawful purpose fails, because he admitted at the plea hearing that he pointed the gun at Wendy to frighten her, thereby "threaten[ing] the immediate use of a deadly weapon." Thus, the matter falls squarely within the holding of State v. Parolin, 171 N.J. 223, 231 (2002), affirming the applicability of the 1997 version of NERA in markedly similar factual circumstances.
As a final matter, we reject defendant's argument that an evidentiary hearing should have been held in this case. Our review of defendant's arguments and supporting proofs discloses nothing that would suggest that the taking of oral testimony was required in this matter. Compare State v. Preciose, 129 N.J. 451, 462-64 (1992).
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