On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 02-07-1607 and 02-08-1769.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and King.
Defendant Mary Fontanez, also known as Mary Bonomo, appeals from the June 21, 2007, denial of her timely petition for post- conviction relief (PCR) and her motion to amend sentence pursuant to Rule 3:21-10(b)(2). We affirm the order denying both forms of relief.
Defendant was charged in two multi-count indictments and pled guilty on April 1, 2003, to three counts of first-degree armed robbery contrary to N.J.S.A. 2C:15-1 under one indictment, and to possession of marijuana with intent to distribute within 1000 feet of a school contrary to N.J.S.A. 2C:35-7 under the second indictment. At sentencing on May 16, 2003, the judge found aggravating factors three, six, and nine based on three felony convictions in Virginia and four matters in New Jersey, plus a disorderly person conviction. He found as mitigating factors defendant's history of drug and alcohol abuse (factor four) and the hardship incarceration would impose on her children (factor eleven). He concluded that the aggravating factors outweighed the mitigating factors and imposed three concurrent ten-year terms of incarceration for the first-degree armed robberies with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five- year term for the drug offense with thirty months to be served before parole, also concurrent. The remaining charges were dismissed.
In her PCR petition, defendant alleged that she was deprived of the effective assistance of counsel at the time of her plea and sentence in that counsel (1) failed to advise her "of the disadvantages of accepting a plea and/or the advantages of testifying at trial"; (2) failed to provide full information at the time of sentencing regarding mitigating factors; and (3) failed "to provide any appealable information regarding that information contained in the defendant's Pre-Sentence Report to be in error." As to her motion to amend sentence, defendant alleged that she had AIDS, hypothyroidism, anemia, hypertension, arthritis, diverticulitis, cirrhosis, lumbar back pain, abdominal hernia at colostomy site, a viral infection, and was a Hepatitis C carrier and status post colectomy. Her psychiatric conditions were depressive disorder, NOS; delirium due to AIDS; and generalized anxiety disorder. She was also taking the following medication: Viramune, Emtriva, Viread, Enalapril, Nepho-vite, Docusate Sodium, Levothyroxine Sodium, Clonidine, Diphenhydramine HCL, Havris 1440 ELU/ML suspension, Engeris-B20, Fluarix, Clonazepam, and Remerom.
The matter was heard by Judge Francis B. Schultz, who scheduled a plenary hearing. Defendant and defendant's psychologist, Joel E. Morgan, Ph.D., testified on March 29, 2007. The State called Edward Crisonino, Esquire, defendant's plea and sentencing counsel; Richard P. Cevasco, who provided mental health services to the Department of Corrections; and Lionel Anicett, M.D., the Statewide Medical Director for Correctional Medical Services, on May 10, 2007; Dr. Morgan completed his testimony later that day. Counsel argued the application on June 7, 2007, and Judge Schultz issued a written decision two weeks later. He carefully summarized the testimony of the various witnesses, all of whom he found to be credible.
After discussing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 52 (1987), the judge found as follows with respect to the PCR petition:
The court agrees with Miss Fontanez that trial counsel did not adhere to the appropriate standard of care regarding his failure to investigate her psychiatric problems in the past. A significant factor in this conclusion is that Miss Fontanez was facing extremely serious penal consequences based on the charges facing her. A diminished capacity or insanity defense should have been seriously looked into. Thus, Prong I of Strickland has been satisfied. Prong II however is another matter.
PCR counsel suggests that had trial counsel investigated the psychiatric background, he would have either been able to negotiate a better plea bargain with the prosecutor's office or would have done a better job of convincing the sentencing judge to sentence her to something lower than ten years with eighty-five percent parole ineligibility. Considering the defendant's prior conviction for manslaughter the court cannot agree that even if trial counsel had investigated her psychiatric background he would have been successful in either attempt. It is purely speculative to suggest that the prosecutor's office would have given her something less than the plea bargain they gave her which involved the minimum sentence for a first degree robbery. For the same reasons trial counsel would not have been successful with the sentencing judge. It should be noted that even if an argument for leniency were based on a psychiatric condition it is very difficult to successfully invoke N.J.S.A. 2C:44-1f(2). The court would have to find that it is clearly convinced that the mitigating factors substantially outweigh the aggravating factors before sentencing her in the range of a second degree crime for what otherwise is a first degree robbery. Once again, the prior manslaughter conviction would have made this impossible. Thus, Miss Fontanez, as petitioner, has failed to prevail on the PCR claim based upon ineffective assistance of counsel.
The Judge then addressed the motion to amend sentence as follows:
The application for resentencing pursuant to R. 3:21-10(b)(2) seems to have a certain procedural problem. Even with her jail credits at the time of sentencing it does not appear that Miss Fontanez has served the mandatory parole disqualifier of eight and one half years as of yet and thus cannot make a motion pursuant to R. 3:21-10(b), State v. Mandel, 212 N.J. Super. 110, 113 (App. Div. 1986); State v. Lee, 354 N.J. Super. 91, 95 (Law Div. 2002). When sentenced on May 16, 2003, she had 422 days of jail credit. She has approximately three more years to go before she would have served the mandatory parole disqualifier. Even if the requirement that the mandatory parole disqualifier must be served was restricted to applications pursuant to R. 3:21-10(b)(1) and not necessarily to R. 3:21-10(b)(2) this court would not be inclined to re-sentence her anyway.
When resentencing pursuant to this rule defendant's prior record and the seriousness of the offense can be considered, State v. Tumminello, 70 N.J. 187, 193-94 (1976). The police report indicated that she actually held the knife against the stomach of one of the robbery victims. Her manslaughter conviction, once ...