On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1420.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Earl Dennis appeals from an order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.
Three separate indictments and one accusation each charged defendant with, among other crimes, robbery, two of the first-degree, N.J.S.A. 2C:15-1a(2), and two of the second-degree, N.J.S.A. 2C:15-1a(1).*fn1 Defendant, who was extended term eligible, entered into a consolidated plea agreement in which he pled guilty to the two second-degree robbery and two first-degree robbery offenses, as well as the third-degree drug offense, in exchange for the State's recommendation of an aggregate sentence of twenty-three years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At his guilty plea hearing, defendant admitted to committing a series of robberies at several Atlantic City casinos during a two-month period in 2003. On June 14, 2003, defendant, accompanied by co-defendant Troy Rice, entered the Claridge Hotel and Casino and punched a bathroom attendant in the face while attempting to take money from him. On June 20, 2003, defendant, who was unarmed at the time, entered Caesar's Palace Casino in Atlantic City and handed the cashier a note, which instructed her not to push any buttons, that he had just served twenty years, and to do what he said. The cashier complied with defendant's demands and handed him money. On July 25, 2003, defendant, with three other men -- co-defendants Thomas Boyd, Eugene Wilder and Keane Blann -- entered Bally's Casino where he then threatened a cage cashier, Kimberly Wilson, with what appeared to be a firearm and said, "give me your money or I am going to fuck you up."*fn2 Wilson complied and handed defendant a bag containing approximately $6000. While defendant was robbing Wilson, his accomplices acted as lookouts and during their casino exit acted as blockers for defendant. Lastly, on July 27, 2003, defendant, armed with the same weapon, entered the Trump Plaza Casino, threatened the cashier with the firearm, and absconded with $17,000.*fn3
Defendant was sentenced on September 17, 2004, in accordance with the negotiated plea. For the two armed robberies, he received consecutive thirteen- and ten-year terms, both subject to NERA's 85% parole bar. He received concurrent seven-year terms with 85% parole disqualifiers on the two second-degree robbery offenses and a concurrent four-year term on the drug possession crime, for an aggregate sentence of twenty-three years with an 85% parole ineligibility term. Appropriate fees and penalties were also imposed. Pursuant to the plea agreement, all remaining counts were dismissed.
Defendant's appeal challenging his sentence was heard on our Excessive Sentence Oral Argument (ESOA) calendar, and we affirmed. Defendant then filed a timely PCR petition, alleging ineffective assistance of trial counsel for failing to argue for a lesser sentence. Specifically, defendant contended that counsel failed to argue disparity between his sentence and those imposed on his co-defendants; advance certain mitigating circumstances, including his drug addiction and alcohol abuse; argue against finding certain aggravating factors; and advocate that the real time consequences of his sentence, as well as the effects of consecutive NERA sentences on the thirty-year old defendant, be considered. Defendant also argued ineffective assistance of appellate counsel for not raising the issue before us.
The PCR judge rejected these claims. He reasoned:
The bottom line is that he was extended term eligible and the Court found Aggravating Factors Three, Six and Nine and found Mitigating Factor Six, if restitution was, in fact, made. Defendant contends there was no argument by Counsel as to the weight they should have been given. Well, you know, Counsel could sit and argue all they want about weight that should be given to an Aggravating Factor but when I sentence somebody that has eight or nine priors and is extended term eligible and has seven or eight prior convictions, Counsel can jump up and down till they're blue in the face but I'm going to always find strong Aggravating Factors Three, Six and Nine. That goes without saying.
I found Mitigating Factor Six [be]cause there was restitution involved but as far as Three, Six and Nine on Aggravating, in fairness to [defense counsel,] there's nothing that he could have said or did or screamed or whatever that was going to change the fact that Three, Six and Nine were strong Aggravating Factors.
Therefore, any argument that was raised, for instance, that because of a drug addiction, that would diminish the likelihood that the Defendant would reoffend, lessening the weight of Aggravating Factor Three and that there should be diminished weight given to Aggravating Six because of drugs, that argument, in a word, is ludicrous. . . .
Defendant had, as I indicated, nine arrests, eight convictions, had been on Probation once, County Jail once, had served two State Prison terms and to add insult to injury, had two Parole violations and one charge of escape. All right? He had an active restraining order against him. He had a juvenile record of 38 filings and 15 adjudications, one for robbery, attempt to kill as well as other theft-related offenses. He had five terms of Probation as a juvenile, eight ...