December 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER PERNIGOTTI, DEFENDANT-APPELLANT.
On appeal from Superior court of New Jersey, Law Division, Burlington County, Indictment No. 03-05-0649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Stern and Graves.
Defendant Peter Pernigotti appeals from an order dated November 28, 2007, denying his petition for post-conviction relief (PCR). We affirm.
Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree armed robbery, in violation of N.J.S.A. 2C:15-1(a)(2) (count two). In return for the guilty plea, the State agreed that defendant would be sentenced as a second-degree offender to no more than a nine-year prison term and that counts one and three of the indictment would be dismissed. On April 2, 2004, defendant was sentenced to an eight-year term of imprisonment subject to an eighty-five percent period of parole ineligibility and five years of parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed the sentence, and the matter was placed on an oral argument calendar. R. 2:9-11. In an order entered on March 14, 2005, this court found that defendant's sentence was "not manifestly excessive or unduly punitive" and we affirmed.
In his petition for PCR heard on January 12, 2007, defendant argued that the trial court failed to properly weigh the appropriate aggravating and mitigating factors "and come to a number." In addition, defendant claimed his appellate attorney was ineffective for failing to raise Blakely*fn1 claims on defendant's sentence appeal to this court. Thus, defendant argued for a reduction of his sentence but did not ask to withdraw his guilty plea and go to trial without the benefit of the plea agreement.
In denying defendant's petition, the PCR court determined the trial court weighed the appropriate sentencing factors and "ended at the correct place." The PCR judge also concluded that defendant's sentence was not illegal; his excessive sentence claim was not an appropriate ground for PCR, State v. Cacamis, 230 N.J. Super. 1, 5 (App. Div. 1988), certif. denied, 114 N.J. 496 (1989); and there were no facts to support defendant's claim that appellate counsel was ineffective.
On appeal from the denial of his PCR petition, defendant presents the following arguments:
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.
THE SENTENCE IMPOSED BY THE COURT PURSUANT TO THE PLEA AGREEMENT DID NOT CONFORM WITH SENTENCING GUIDELINES, RESULTING IN A VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.
THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
We conclude from our review of the record that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
When applying the Strickland/Fritz*fn2 two-part test "to assess a claim of ineffective assistance of appellate counsel, defendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different." State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). In the present matter, Judge LeBon concluded that defendant failed to meet both prongs of the Strickland/Fritz test, and the record amply supports that determination. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge LeBon in her oral decision on January 12, 2007.