April 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GABRIEL HENDERSON A/K/A ROBERT SERRANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2010
Before Judges Lisa and Alvarez.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. Essex County Indictment No. 00-02-0276 charged defendant with seven counts, including one count of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), and four counts of attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. Pursuant to a plea agreement, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a and two amended counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). He also pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. In exchange for the plea to those charges, the State agreed to dismiss all remaining counts and to recommend an aggregate sentence not exceeding fifteen years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 26, 2002, defendant was sentenced in accordance with the plea agreement. He received a fifteen-year NERA sentence for aggravated manslaughter, and concurrent seven-year sentences on the other three counts.
Defendant appealed. The matter was placed on our excessive sentencing calendar. See R. 2:9-11. On November 16, 2006, we issued an order remanding the matter to the trial court for entry of a corrected judgment of conviction to reflect merger of the possession of a weapon for an unlawful purpose count with the aggravated manslaughter count, but in all other respects affirmed defendant's conviction and sentence.
On January 29, 2007, defendant filed his PCR petition. Counsel was assigned, and the matter came before Judge Kennedy, who issued a written opinion and order denying the petition without an evidentiary hearing. This appeal followed.
Defendant presents the following arguments:
THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S MOTION FOR POST CONVICTION REL[IE]F (PCR) AND IN THE ALTERNATIVE THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT AN EVIDENTIARY HEARING.
A. The trial court committed error by not vacating the Appellant's plea and sentence to aggravated manslaughter because the factual statement did not meet the elements to establish the charge of aggravated manslaughter.
B. The Appellant's trial counsel was ineffective for not arguing any mitigating factors on his behalf and arguing for a sentence below the term recommended by the [S]tate.
C. The Appellant's plea was void because he did not complete the required forms advising him of the parole requirements under the No Early Release Act.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth in Judge Kennedy's November 1, 2007 written opinion. For the sake of completeness, we set forth a summary of the underlying facts and a few brief comments.
After leaving a party in Newark, defendant, who was armed with a loaded forty-five caliber handgun, fired six or seven rounds at close range into a passing van containing five occupants. He killed one of the occupants and wounded two others. Defendant recited these facts in support of his guilty plea.
We first note that defendant's PCR arguments are procedurally barred because they could have been raised on direct appeal. R. 3:22-4. The arguments also lack substantive merit. Like Judge Kennedy, we find unpersuasive defendant's argument that because he did not provide testimony as to his mental state, his factual basis was deficient. Although defendant did not specifically state that he "was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that [he] manifested extreme indifference to human life[,]" State v. Cruz, 163 N.J. 403, 417 (2000), "[d]irect proof of a defendant's mental state is not required." State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005). "His awareness of the probability or practical certainty of a result, like willfulness or intent, may be inferred from the circumstances and his conduct." Ibid. We are satisfied that defendant's factual basis supported a reasonable inference that he possessed the mental state required for conviction of aggravated manslaughter.
Defendant's contention that his attorney was deficient for not arguing mitigating factors is also unpersuasive. Defendant provides no basis to support the mitigating factors he now urges. In any event, even if any mitigating factors applied, the result would not have been different. Defendant received an extremely favorable fifteen-year sentence for aggravated manslaughter, below the midrange of twenty years applicable for that crime, see N.J.S.A. 2C:44-1f(1)(a). Further, for the two aggravated assault counts, which were predicated upon the wounding of two separate victims, defendant received concurrent midrange sentences, which could be characterized as "free crimes." See State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Accordingly, counsel's conduct for not advancing meritless mitigating factors did not constitute deficient conduct, and even if it did, defendant was not prejudiced because the outcome would not have been different. As a result, neither Strickland/Fritz*fn1 prong was satisfied.
Finally, defendant's contention that his plea was void because the penal consequences of NERA were not explained to him is belied by the record. During the plea colloquy, the judge explained to defendant that he would be required to serve eighty-five percent of his sentence before being eligible for parole and that he would be subject to five years parole supervision.