On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 05-04-1041, 05-04-0829 and 05-04-0890.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 28, 2010
Before Judges Axelrad and Espinosa.
Defendant Jason Specchio appeals from the June 27, 2008 order of the Law Division denying his petition for post-conviction relief (PCR). He alleged, in part, ineffective assistance of trial counsel in failing to inform him of the penal consequences of his plea, failing to argue for a sentence concurrent to the one he was serving, and failing to argue for the application of certain mitigating factors; and ineffective assistance of appellate counsel in failing to file a petition for certification. Defendant also challenged his sentence as illegal. We affirm.
On July 18, 2005, defendant pled guilty pursuant to a plea agreement that covered charges in three indictments. Defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1 (count one, Indictment No. 05-04-1041); third-degree theft by deception, N.J.S.A. 2C:20-4 (count one, Indictment No. 05-04-0829); fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1a (count two, Indictment No. 05-04-0829); and second-degree eluding, N.J.S.A. 2C:29-2b (count one, Indictment No. 05-04-0890). On October 28, 2005, Judge Neafsey sentenced defendant, pursuant to the plea agreement, to an aggregate ten-year term subject to the No Early Release Act (NERA) to run consecutive to the sentence defendant was serving.*fn1 Pursuant to the plea agreement, the State dropped the remaining charges against defendant and all charges against co-defendant, defendant's girlfriend. Defendant filed an appeal of his sentence, which was placed on our excessive sentence oral argument (ESOA) calendar. We heard argument on May 31, 2007 and affirmed. State v. Specchio, No. A-6265-05T4 (App. Div. June 4, 2007).
This PCR petition ensued and was denied by Judge Neafsey on June 27, 2008, in the presence of defendant, but without an evidentiary hearing. The judge found defendant's sentencing claims were procedurally barred pursuant to Rule 3:22-5, because defendant had challenged the excessiveness of his sentence on direct appeal and that challenge had been rejected on its merits. The judge further found the sentence was not illegal as the ten-year term on armed robbery was the lowest term for a first-degree offense. Judge Neafsey was satisfied trial counsel "made a professionally competent sentencing argument on the defendant's behalf" and argued mitigating factors which the court considered, along with defendant's comments, thus informing the court that defendant's criminal tendencies arose from a drug problem. The court had concluded, however, that such drug abuse was not a mitigating factor for a crime of violence such as armed robbery, and that the offenses committed by defendant were separate acts of violence from the six prior indictments that he had been sentenced on, thereby necessitating the imposition of a consecutive term. Accordingly, the PCR judge concluded that defendant's ineffective assistance of trial counsel claim failed to satisfy either prong of the Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (To establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits.).
The PCR judge further rejected defendant's claim of deficiency by the Public Defender's Appellate Office, noting that appellate counsel informed defendant prior to the excessive sentence hearing that no further appeal would be filed on his behalf but that he had a right to file his own petition to the Supreme Court for further review. The judge also found that defendant failed to demonstrate the existence of cumulative errors either by the court or counsel, or any other reason to reduce the negotiated sentence that was lawfully imposed and upheld on appeal. This appeal ensued.
Defendant essentially raises the same arguments on appeal, asserting: (1) trial counsel failed to inform him of the penal consequences of his plea, failed to argue for a sentence concurrent to the one he was serving, and failed to argue for the application of certain mitigating factors; (2) he was denied the effective assistance of appellate counsel and was entitled to an evidentiary hearing on this issue; (3) the errors by the court and counsel were cumulative, requiring reversal; and (4) the trial court erred in accepting defendant's plea without explaining to him its full penal consequences, namely that the sentence on these charges would be consecutive to the sentence defendant was serving on the other charges. Defendant asserts, for the first time on appeal, that the trial court committed plain error in failing to merge his convictions for uttering a forged instrument and theft by deception, and that he was denied effective assistance of PCR counsel who failed to fully present meritorious arguments with appropriate citations to the record.
Based on our review of the record and applicable law, we are satisfied defendant failed to make a prima facie showing of ineffective assistance of trial, appellate, or PCR counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied that all of defendant's arguments raised on PCR are either procedurally barred or without substantive merit. Defendant's arguments raised on appeal were more than adequately addressed by the PCR judge and do not warrant additional discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Neafsey in his oral opinion. We add the following brief comments.
The plea agreement and colloquy on the record clearly indicate that defendant was well aware this package of concurrent sentences would run consecutively to the current sentence he was serving. Moreover, defendant's new argument regarding merger is both procedurally barred and lacking in merit. This court does not entertain arguments raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, we are satisfied from our review of the record that the issue was fully capable of being raised on direct appeal and is therefore procedurally barred pursuant to Rule 3:22-4. Moreover, it appears from the record that defendant waived merger of his convictions for uttering a forged instrument and theft by deception when he entered into the negotiated plea agreement which, incidentally, provided for the imposition of concurrent terms. See State v. Crawley, 149 N.J. 310, 312-13 (1997) (a defendant can waive his right to merger of offenses as part of a plea agreement and, where such a waiver is voluntary and intelligent, the defendant will be prohibited from challenging the waiver on appeal).