April 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH BORDEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-12-2096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges Reisner and Alvarez.
Defendant Keith Borden appeals the denial on February 1, 2007, of his petition for post-conviction relief (PCR). We affirm.
On appeal, defendant raises the following points:
THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; TRIAL-LEVEL COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.
A. THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING WHEN HIS ATTORNEY DID NOT OPPOSE THE APPLICATION OF AGGRAVATING FACTOR (6), EXTENT AND SERIOUSNESS OF DEFENDANT'S PRIOR RECORD.
B. TRIAL-LEVEL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ARGUE ANY MITIGATING FACTORS AT SENTENCING.
C. THE DEFENDANT-APPELLANT WAS ENTITLED TO AN EVIDENTIARY HEARING.
THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN HIS MOTION FOR POST-CONVICTION RELIEF.
We have considered the arguments in light of the record and applicable legal principles and reject the arguments in their entirety. See R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Kenny's oral decision. We make only the following comments.
As his trial on Hudson County Indictment No. 03-12-2096 was about to begin, defendant entered a plea of guilty to count three, possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Pursuant to the plea agreement, he was sentenced on January 3, 2005, to six years in State prison, subject to three years of parole ineligibility. His sentence was made concurrent to the sentence that he was then serving. Defendant was eligible for a mandatory extended term under N.J.S.A. 2C:43-6(f) because he had previously been sentenced on possession of CDS with intent to distribute within 1000 feet of school property on January 3, 2003. Accordingly, the plea agreement called for him to be sentenced as required by statute.
During the plea colloquy, the judge clearly explained to defendant that he would be sentenced as a mandatory extended-term offender. The judge also explained that because of his prior drug distribution conviction, if defendant was convicted by a jury of the offenses charged in the indictment, he could be sentenced to up to ten years of imprisonment, subject to parole ineligibility of between one-third and one-half of the sentence or three years, whichever was greater. N.J.S.A. 2C:43-6(f). In addition to his prior drug distribution offense, defendant was previously convicted of an indictable possession of CDS.
When defendant was sentenced, the court found aggravating factors three, six, nine, and eleven, and no mitigating factors. See N.J.S.A. 2C:44-1. As Judge Kenny then noted, although the prosecutor did not file a formal motion for an extended term to be imposed, the prosecutor clearly stated that defendant had to be sentenced in that manner during the plea hearing as well as at sentencing, and spelled out the agreement on the plea form that defendant signed.
The mandatory extended-term sentence range for a third-degree offense is five to ten years. N.J.S.A. 2C:43-7(a)(4). This defendant, who was only twenty when sentenced, had previously been convicted of two drug offenses. Under the circumstances, it was appropriate for the court to find aggravating factor six, the extent and seriousness of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6). Although two prior indictable convictions might not warrant the finding of that factor for a forty-year-old defendant who incurred the convictions over a lifetime, they would for a twenty-year-old person who had incurred the convictions since turning eighteen. In fact, defendant was still on parole when he committed this offense. In light of the weight that could have been accorded to all of the aggravating factors found by the sentencing judge, a sentence at the low end of the range for a mandatory extended-term defendant was, if anything, generous.
We also agree with Judge Kenny that the challenge to the sentence should in any event have been raised by way of direct appeal. See State v. Pierce, 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971). Defendant improperly characterizes this argument as an ineffective assistance of counsel claim in an attempt to avoid application of Rule 3:22-4, which bars consideration on PCR of issues that could have been addressed by way of direct appeal.
Similarly, defendant contends that trial counsel was ineffective in failing to make arguments in support of mitigating factor four, N.J.S.A. 2C:44-1(b)(4), substantial grounds tending to excuse or justify defendant's conduct. Aside from the fact that this argument also should have been raised on direct appeal, there was no factual basis that connected defendant's family history with his criminal history. See, e.g., State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (a defendant's troubled youth, abuse by the victim, and expert reports that she suffered from post-traumatic stress disorder consistent with severe and chronic spousal abuse are relevant to mitigating factors two, four, and five, N.J.S.A. 2C:44-1(b)(2), (b)(4), and (b)(5)).
Judge Kenny was not required to conduct an evidentiary hearing on the ineffective assistance of counsel claims because defendant did not establish a prima facie case. See State v. Murray, 162 N.J. 240 (2000). Her ruling on that score is therefore unassailable.
Defendant now further contends that his PCR attorney was ineffective. In light of our determination that all of defendant's PCR contentions lack merit, we cannot agree that counsel's presentation was ineffective. Any lack of success on PCR was due to the lack of merit inherent in defendant's arguments, not to any failure on the part of counsel.
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