On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-11-1885.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Alvarez and Coburn.
Defendant Eduardo Valdez-Campos appeals from the October 4, 2007 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was charged in a multi-count indictment with the attempted murder of Yolanda Alvarez and Omar Callaje, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3. The charges stemmed from defendant's encounter with the victims on May 22, 2004; Alvarez was purportedly defendant's girlfriend. On April 18, 2005, defendant entered a guilty plea to only one count of the indictment, the attempted murder of Alvarez. The remaining ten counts, including all charges relating to defendant's assault upon Callaje, were dismissed. Defendant was then fifty-eight and his criminal history consisted of seven prior indictable convictions, although none occurred after 1992.
In accord with the agreement, defendant was sentenced to ten years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on June 17, 2005. On October 28, 2005, defendant filed a pro se petition for PCR. Counsel was assigned, and thereafter submitted a supplemental brief in support of PCR. The same judge accepted defendant's guilty plea, sentenced him, and presided over the PCR proceedings. He denied defendant's petition on procedural grounds, concluding that defendant should have raised his PCR contentions by way of direct appeal. He also denied the petition on the merits, opining that the record did not support defendant's claims. He noted that defendant's pro se argument that NERA was unconstitutional had been rejected in State v. Johnson, 325 N.J. Super. 78, 88-89 (App. Div. 1999).
We affirm the denial of PCR essentially for the reasons stated in the judge's decision as to the merits and add only the following brief comments. The principal thrust of the appeal is that defendant should have been granted an evidentiary hearing to establish his claims. The argument has no merit because defendant did not establish the requisite prima facie case of ineffective assistance of counsel. See State v. Murray, 162 N.J. 240, 250 (2000); State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant asserts his trial counsel was ineffective because at the sentencing proceeding she should have argued for a reduced term and established a record for mitigating factors four, five, seven, eight, and nine. N.J.S.A. 2C:44-1b. Defendant, despite having seven prior criminal convictions, albeit the last occurred in 1992, received the lowest possible sentence for a first-degree offense. Mitigating factors, like aggravating factors, require that some credible proofs be presented. See State v. Cooper, 151 N.J. 326, 396-97 (1997). No such proofs were presented at the time of sentence; no such proofs have even been suggested in this petition, much less established. More than bald assertions are required in order for a reviewing court to determine that a prima facie case exists. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In the absence of a prima facie case, there is no need for an evidentiary hearing. Ibid.
Defendant argued at the PCR hearing that the victim's sexual liaison with Callaje tended to justify defendant's conduct, although it did not establish a defense. Obviously, some consideration must have been given to those circumstances, as well as to defendant's age at the time the plea was negotiated, in order for defendant to have obtained such a favorable plea.
Defendant further contended that Alvarez's efforts at physically interceding in the struggle between the two men, as opposed to calling 911, warranted a finding of mitigating factor five, that the victim's "conduct induced or facilitated" the commission of the crime. N.J.S.A. 2C:44-1b(5). It makes no sense to claim, as support for mitigating factor five, that a victim induced her own stabbing by trying to prevent the stabbing of another rather than calling police. Similarly specious is the argument the court should have found mitigating factor seven, that defendant previously lived "a law-abiding life for a substantial period of time." N.J.S.A. 2C:44-1b(7).
Given the extent of defendant's prior criminal history, the court's decision not to award this factor is not an abuse of discretion. His prior convictions included weapons possession and assault. Equally without substantiation are the claims that mitigating factor eight, that "defendant's conduct was the result of circumstances unlikely to occur," N.J.S.A. 2C:44-1b(8), and nine, that his "character and attitude" indicated that he was "unlikely to commit another offense," N.J.S.A. 2C:44-1b(9), were applicable. No facts in the record support these factors.
Finally, the very language of N.J.S.A. 2C:44-1f(2) defeats defendant's claims. The statute provides that where a court "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." Ibid. In other words, in order for defendant to have been sentenced to less than the ten years he is serving, he would have had to be sentenced as a second-degree offender. The sentencing judge found the aggravating factors to be substantial and found no mitigating factors. No information supplied to the motion judge warranted the issuance of any mitigating factors. Therefore, in the absence of mitigating factors and the presence of substantial aggravating factors, it would have been technically impossible for the court to sentence defendant to less than ten years. Counsel obtained a very beneficial plea bargain for his client by virtue of the ten-year recommendation by the State. He could do no better. His silence on the subject of mitigating factors was simply not ineffective assistance.
The claimed lack of constitutionality of NERA does not warrant further discussion in a written ...