May 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EARL DENNIS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
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 violations of Parole -- of Probation and three prison sentences. And, of course, as I said, he was extended term eligible.
[Defense counsel] made an argument about the Defendant's age and the Defendant's record and drugs and everything and as far as me not considering the real time consequence, my memory is, and it was refreshed by the transcripts, that I even said when he talked about well, he's going to be -- you know, he's going to be in prison till he's 50 years old and I said something to the effect why there's many 50, 60, 70 year old people who are very productive members of society and its not going to be too late for him when he gets out.
Based on what you were looking at. And based on the time that you were looking at. And based on the facts of the cases as I know them to be, you basically were able to escape a life sentence with this plea bargain.
But to say that he didn't argue real time consequence is clearly without merit. The record will show that. To say that he, you know, didn't argue sentence disparity, as I indicated, you know, [defense counsel] admitted, as he had to admit, that you were more heavily involved than -- than the co-Defendants in regard to the 03-01-00190 robbery that you got 13 years because the facts absolutely warrant and showed that and show that.
So the argument -- and -- and also, I should make mention, as far as appellate arguments and as far as consecutive sentences and concurrent sentences, there is no question, under [State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986)] and the Yarbough analysis, there is no question that consecutive sentences were in order for all four of these matters, not just two of them, all four of them. They were separate and distinct, independent and even if you didn't do extended terms, okay?
Even if you didn't do extended terms, you had two first-degree offenses so you could get 40 and two second-degree offenses of 10 and 10. That's 60 years. Without talking extended term, under consecutive sentences.
On this appeal, defendant reiterates the same arguments he raised in the PCR court. Upon consideration of these claims in light of the record and the applicable law, we reject them as without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by the PCR judge in his oral opinion of December 14, 2007. We add, however, the following comments.
It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced his right to a fair trial or the outcome of the plea process. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 209-10 (1985); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.
Here, contrary to defendant's contentions, defense counsel advanced several mitigating circumstances including the fact that defendant had no intention of harming anyone during the commission of these offenses, as he only possessed a toy gun during the two armed robberies; never hurt anyone during the commission of any of these offenses; and only committed the four robberies to support his "very bad drug habit [and] addiction[.]" Indeed, the record, in our view, does not admit of any other mitigating factors for which counsel could have legitimately argued at sentencing. See, e.g., N.J.S.A. 2C:44-1b(3), (5), (7), (8), (9), (10) and (13). Moreover, the fact that the sentencing court may not have accepted counsel's arguments in mitigation of sentence does not indicate by any means that counsel's representation was unconstitutionally ineffective. Cf. State v. Bey (V), 161 N.J. 233, 314 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000). In juxtaposition, the record clearly supports the aggravating factors found by the sentencing judge and it remains unclear what additional arguments counsel should have advocated at sentencing to have persuaded the court otherwise.
We also find no merit to the contention that counsel was ineffective for failing to emphasize the gross sentencing disparity. The difference between defendant's aggregate twenty- three-year term and the five-year terms imposed on his co-defendants -- all with NERA parole bars -- is clearly justifiable in light of the dissimilarities in personal circumstances and level of criminal involvement. See State v. Roach (I), 146 N.J. 208, 232-37, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, l36 L.Ed. 2d 424 (1996). The co-defendants here were charged in only one indictment while defendant was charged in five and was the only one who pled guilty to first-degree crimes. Moreover, defendant's actions were far more culpable than those of his cohorts, having in the one instance assaulted a casino worker while Rice simply blocked his exit, and in the other instance, threatened a cage cashier with what appeared to be a deadly weapon while Boyd, Blann and Wilder acted merely as lookouts and blockers.
Similarly, while the judge may have failed to detail the reasons for imposing consecutive sentences on defendant's two first-degree robberies, the record amply supports this disposition as within the Yarbough guidelines*fn4 , State v. Molina, 168 N.J. 436, 442-43 (2001); State v. Perry, 124 N.J. 128, 177 (1991), and we discern no prejudice to defendant as a result of any alleged deficiency on defense counsel's part. Simply put, defendant pled guilty to five offenses committed over the course of approximately forty-three days. The four robberies occurred at four different casinos against four different victims, a fact that alone "should ordinarily result in the imposition of at least two consecutive terms." Molina, supra, 168 N.J. at 442-43 (quoting State v. Carey, 168 N.J. 413, 429-30 (2001)). Two of the robberies were committed with a simulated firearm; one was committed with physical force applied directly against the victim. In one robbery, defendant used three accomplices; in another he used one accomplice; and in the other two, he acted alone. Suffice it to say, the judge sentenced defendant in accordance with the negotiated plea and after a careful balancing of the applicable mitigating and aggravating factors. Later, on defendant's PCR application, the same judge who sentenced defendant noted under Yarbough "consecutive sentences were in order for all four [robberies]," and that considering defendant's exposure to a life term, the sentence ultimately meted out was "one hell of a plea bargain."
Lastly, because we conclude that defendant did not receive ineffective assistance of counsel at sentencing, appellate counsel had no duty to raise the argument on direct appeal. See State v. Worlock, 117 N.J. 596, 625 (1990).