November 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOUGLAS ARTISON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-07-1271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Baxter and Alvarez.
Defendant Douglas Artison appeals from his April 18, 2008 conviction, following a trial by jury, on the charge of fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2. The judge sentenced defendant to an eighteen-month term of imprisonment and imposed appropriate fines and penalties. On appeal, defendant raises the following claims:
I. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL
II. DEFENDANT'S SENTENCE IS EXCESSIVE
We reject defendant's contention that the sentence imposed was excessive. We decline to address the ineffective assistance of counsel claim that defendant asserts in Point I, and instead preserve it for post-conviction review in keeping with State v. Preciose, 129 N.J. 451, 460 (1992).
By virtue of a 2005 conviction for criminal sexual contact, N.J.S.A. 2C:14-3(b), defendant was required to register as a sex offender and notify local police of any change of address. To satisfy that obligation, defendant registered with Detective Patrick Coffey of the Hackensack police department on July 18, 2006. Defendant listed his current address as an apartment on East Kansas Street. At the time, defendant completed a document in which he acknowledged his duty to not only register with police annually, but also to notify police of any intention to establish a new address ten days prior to any such relocation. Approximately five months later, on December 4, 2006, defendant signed a change of address document in which he listed his new address as an apartment on Prospect Avenue, in Hackensack.*fn1
In May 2007, an employee of an unspecified state law enforcement agency contacted Coffey concerning defendant's whereabouts. As a result of that conversation, Coffey attempted to locate Artison at the Prospect Avenue address, but was unable to do so. Coffey returned to the apartment on two or three occasions, leaving his business card each time. On one of those occasions, a female resident answered the door and allowed Coffey to enter the apartment. Coffey's visual inspection of the apartment revealed that none of defendant's personal belongings were inside. Concluding that defendant did not live at the Prospect Avenue apartment, Coffey charged defendant with failure to register as a sex offender.
On April 21, 2007, Lawrence Ryan, defendant's parole officer, sent correspondence to defendant at the Prospect Avenue address asking defendant to contact him. After Ryan's letter was returned to him as undeliverable, he conducted a home visit at the Prospect Avenue address. Upon arrival, Ryan was met by Debra Dunlap, defendant's former girlfriend, who told him that defendant no longer lived there. Like Coffey, Ryan observed that there was no sign of defendant at the residence.
At trial, defendant testified he was indeed living at the Prospect Avenue apartment, but was incarcerated in the Bergen County jail for five days beginning April 25, 2007. He further testified that upon his release from custody, he could not gain access to the apartment because Dunlap had been admitted to the hospital suffering from kidney problems. According to defendant, he attempted to contact Coffey several times to inform him that he was homeless and was on a waiting list for admission to a homeless shelter.
We turn to Point I, in which defendant maintains he was denied the effective assistance of trial counsel because his attorney failed to: 1) move for a new trial prior to sentencing even though the verdict was against the weight of the evidence; and 2) call Dunlap as a witness to verify defendant's testimony that he was unable to return to the apartment after he was released from custody because Dunlap was then hospitalized.
To prove ineffective assistance of counsel, and therefore a constitutional violation, defendant must demonstrate that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). "'Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. Here, we conclude that defendant's last two claims of ineffective assistance of counsel should not be entertained on direct appeal because those claims cannot be resolved without consideration of matters that lie outside the trial record.
We are satisfied that the record contains none of the facts that would enable us to evaluate defendant's claim that counsel was ineffective because he failed to call Dunlap as a witness. In particular, we cannot determine whether, for example, trial counsel interviewed Dunlap and determined that her testimony would not be helpful, in which case the failure to call her as a witness would be entirely justifiable. In contrast, it is also possible that, despite the potentially helpful testimony that Dunlap might have offered, defense counsel made no effort to interview her. Questions such as these cannot be resolved on the present record because such claims involve allegations and evidence that lie outside the trial record. For that reason, we decline to consider this claim, and instead preserve it for post-conviction review. Preciose, supra, 129 N.J. at 460.
Admittedly, the present record might enable us to evaluate defendant's claim that trial counsel was ineffective because he failed to move for a new trial; however, rather than consider that claim on direct appeal, while at the same time deferring the claim involving the failure to call Dunlap, we instead conclude that the more prudent course is to decline to consider the issue of the failure to move for a new trial. Thus, in keeping with Preciose, both ineffective assistance of counsel claims are preserved for post-conviction review.
In Point II, defendant argues that the eighteen-month term of imprisonment that the judge imposed was excessive. While it is likely that defendant has already been released from confinement, and this claim is therefore likely moot, we nonetheless address it for the sake of complete appellate review. Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant concedes he has a "lengthy prior record." He also concedes that the aggravating factors articulated by Judge Donald R. Venezia find ample support in the record.*fn2 He contends, however, that the judge erred by failing to find the existence of mitigating factor one, defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); and the defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). Apart from the fact that neither of these mitigating factors was raised at sentencing, we conclude that neither one finds support in the record.
Unquestionably, a defendant who fails to register as a sex offender creates the risk that law enforcement will be unable to track his whereabouts and will be unable to ensure that the community notification requirements of N.J.S.A. 2C:7-6 and 7-7 are satisfied. Under such circumstances, N.J.S.A. 2C:44-1(b)(1) is inapplicable. We likewise reject defendant's contention that he did not understand the risk of harm that his failure to register would create. The record establishes that defendant had a meeting with Detective Coffey at which time Coffey explained defendant's obligations. Under those circumstances, the judge was certainly not required to find the existence of mitigating factor two, that defendant did not contemplate his conduct would cause or threaten serious harm. A judge is only required to find those mitigating factors that are supported by the evidence. State v. Dalziel, 182 N.J. 494, 503-04 (2005). We perceive no Dalziel violation here.
We likewise reject defendant's contention that the eighteen-month term of imprisonment that Judge Venezia imposed was excessive. First, we reject defendant's contention that the judge imposed the maximum sentence. He did not. The maximum sentence that could have been imposed was an eighteen-month term of imprisonment with a nine-month period of parole eligibility. See N.J.S.A. 2C:43-6(b). The judge imposed no parole ineligibility period; therefore, the sentence imposed was not the maximum sentence.
Defendant also argues that his sentence was excessive because he could have been sentenced to only time served, which was 323 days. That, however, is not the yardstick by which we measure claims of excessive sentence. See Roth, supra, 95 N.J. at 364-65. Defendant's prior record dates to 1974 and includes nine prior indictable convictions and thirteen municipal court convictions.*fn3 The judge found the existence of three aggravating factors and concluded that no mitigating factors were present, a conclusion that is well-supported by the record. Consequently, we perceive no basis for interfering with the broad sentencing discretion afforded trial judges by State v. Roth. Judge Venezia did not abuse his discretion and the sentence imposed does not shock the judicial conscience.
The sentence imposed is affirmed. Defendant's claim of ineffective assistance of counsel is preserved for post-conviction review.