May 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERT CORTES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 02-11-2320.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2009
Before Judges Carchman and R. B. Coleman.
Defendant Albert Cortes appeals from a denial of his petition for post-conviction relief (PCR). Defendant's principal argument is that, notwithstanding the agreement to plead guilty to the charge of first-degree aggravated manslaughter in exchange for the State's recommendation of a sentence of ten years in prison, he received ineffective assistance of counsel because his attorney did not argue for certain mitigating factors and did not seek a term of incarceration appropriate to a crime one degree lower than that to which he pled guilty. The PCR judge rejected defendant's arguments, making the following observations:
[T]his is something that simply could have been raised on an appeal and it wasn't.
And to allege incompetence of counsel on the basis to make this a PCR application is, quite frankly, in this court's view disingenuous.
The argument is basically that the judge should have not followed the plea agreement[,] the bargain[ed] for plea agreement[,] where the defendant was avoiding a maximum term of 20 years for aggravated manslaughter. A sentence of 30 years without parole is a minimum for the murder. That the judge should have now downgraded that particular sentence to a degree lower.
And under 2C:44-1f(2) the judge could do that if the judge found that the mitigating outweigh the aggravating substantially to the point where justice demands a lower sentence.
And under the facts of this particular case, that could have never happened. It really wasn't there.
The judge then reviewed the mitigating factors urged by defendant, and concluded:
I wouldn't have found any of those mitigating factors to apply. And, quite frankly, even if you did find some of those mitigating factors to apply, they certainly in the facts of this particular case wouldn't amount to a situation where you could say that those mitigating factors substantially outweigh the aggravating factors.
For substantially the reasons expressed by the PCR judge, we affirm.
The facts of the case are not in dispute. On February 5, 2002, defendant was in Asbury Park. On that day, at around 4:30 p.m., Damon Holmes bought drugs from defendant but returned about a half an hour later demanding that defendant refund his money because "the drugs were no good." Defendant said he would refund the money if Mr. Holmes returned the drugs. Because Mr. Holmes did not have the drugs, he grabbed a stick and tried to hit defendant over the head. The stick Mr. Holmes used was described as "a branch that had been trimmed off of a tree . . . about a foot to a foot and half long." "At its base . . . [it was] about two to two and half inches . . . in diameter . . . [a]nd it then branche[d] out into . . . small branches of no more than . . . half an inch to an inch at most in diameter."
Defendant blocked the blow with his arm, suffering a laceration on the hand as a result, and he stabbed Mr. Holmes once with a six-inch folding knife, killing him. According to defendant's statement, he walked away, hid in the next block, waited for a cab to get to the train station, and went home to Newark. Eight days later, the police came to his house and arrested him for murder.
On November 21, 2002, defendant was charged under Monmouth County Accusation No. 02-11-2320, with the following six counts:
(1) first-degree murder, contrary to N.J.S.A. 2C:11-3 (count one); (2) first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4 (count two); (3) second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count three); (4) third-degree aggravated assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1(b)(2) (count four); (5) third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count five); and, (6) fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count six). On that same date, defendant signed a waiver of indictment and entered into a plea agreement, pursuant to which he pled guilty to count two (first-degree aggravated manslaughter) and count six (fourth-degree unlawful possession of a weapon). In exchange for the plea of guilty, the State agreed to recommend the dismissal of the remaining charges and to recommend an aggregate ten-year sentence with an eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the sentencing hearing on January 31, 2003, the judge followed the terms of the plea agreement and entered a judgment of conviction sentencing defendant to a prison term of ten years on count two, of which defendant must serve eighty-five percent before becoming eligible for parole, and a term of twelve months on count six, to be served concurrent to the sentence on count two.
Defendant did not appeal the judgment of conviction; however, four years later, on February 6, 2007, he filed a pro se PCR motion seeking the assignment of counsel, discovery and transcripts. In the certification in support of his petition, defendant stated that he "need[ed] the discovery to show he was provoked by the victim, and he wishe[d] to present evidence . . . that he could be sentenced to one degree lower on the charge without changing the charge pled to." Defendant specifically asserted that "[p]petitioner does not wish to vacate the plea for aggravated manslaughter . . . he only wishes to have an evidentiary hearing held in order for the court to determine the facts relevant in his petition and Memorandum of Law which will be submitted[.]"
The PCR judge denied the PCR petition, concluding that the requested relief is procedurally barred because the issues presented could have been raised on direct appeal, and further finding that the additional mitigating factors which defendant contends should have been considered by the sentencing judge, would not have warranted a sentence for a crime one grade lower than the first-degree crime to which defendant pled guilty.
On appeal from the order denying his PCR petition, defendant makes the following arguments in his brief:
POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF. (Not Raised Below)
POINT II: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS THAT DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIX AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.
A. Defendant was denied effective assistance of counsel during trial preparation and plea negotiations.
B. Defendant was denied effective assistance of counsel at sentencing.
POINT III: THE PCR COURT ERRED BY RESOLVING DISPUTED ISSUES OF FACT AGAINST DEFENDANT AND DENYING DEFENDANT'S REQUEST FOR A HEARING ON HIS PCR PETITION.
POINT IV: DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF THE CUMULATIVE ERRORS AND OMISSIONS OF HIS TRIAL COUNSEL AND PCR COUNSEL IN FAILING TO PREPARE DEFENDANT'S CASE. (Not Raised Below)
POINT V: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
We see no need to discuss each of defendant's arguments because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As we have already noted, we agree with the PCR judge that the mitigating factors now raised by defendant would not have prompted a different result, and defendant could have appealed the sentencing judge's exercise of discretion following the plea agreement. We nevertheless add these few comments.
First, it is well established that "[f]or a defendant to establish a case of ineffective assistance of counsel, the defendant must show that '[defense] counsel's performance was deficient,' and that 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). See also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984). In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court approved the two-part Strickland test for evaluating ineffective assistance claims under our State constitution. "[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Echols, 199 N.J. 344, 358 (2007) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, a "challenged error must be so serious as to undermine the court's confidence in defendant's conviction." Id. at 359. The petitioner bears the burden of proof to establish the grounds for PCR by the preponderance of the credible evidence, id. at 357, and the PCR judge appropriately concluded that defendant did not meet his burden of proof. State v. Webster, 187 N.J. 254, 257 (2006) recognized, as defendant states, that an attorney has a duty "to communicate with the client, [to] investigate the claims urged by the client . . . [to] determine whether there are additional claims that should be brought forward . . . [and to] advance all of the legitimate arguments that the record will support." See also State v. Rue, 175 N.J. 1, 19 (2002). However, these cases do not lead us to conclude that a remand is warranted under the facts of this case. A review of the transcript of oral arguments on the PCR petition reveals that PCR counsel actually advanced defendant's argument that the facts would have supported additional mitigating factors, such as provocation, self-defense and diminished capacity due to defendant's impulsive behavior disorder; but the PCR judge's response --with which we are in agreement -- was that "the test . . . is I have to be satisfied that the mitigating factors outweigh the aggravating and there would be a substantial injustice. And you can't say that in this case."
"[T]he standard governing downgrading is high." State v. Megargel, 143 N.J. 484, 500 (1996); State v. Read, 397 N.J. Super. 598, 612 (App. Div.), certif. denied, 196 N.J. 85 (2008).
[T]he standard for downgrading an offense for the purpose of sentencing under section 44-1f(2) [N.J.S.A. 2C:44-1(f)(2)] is two-pronged: first, the court must be "clearly convinced" that the mitigating factors "substantially" outweigh the aggravating ones, and second, the court must find that the "interest of justice" demands that the sentence be downgraded. The reasons justifying a downgrade must be "compelling," and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors. [Megargel, supra, 143 N.J. at 504-05.]
The applicable statutory provision, N.J.S.A. 2C:44-1(f)(2), more fully states:
In cases of convictions for crimes of the first or second degree where the 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. If the court does impose sentence pursuant to this paragraph, or if the court imposes a non-custodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. [N.J.S.A. 2C:44-1(f)(2).]
Notably, the relief permitted by that provision is so extraordinary that the effective date of the sentence is postponed to permit an appeal by the prosecution.
As the State points out, defendant does not identify any particularized information that PCR counsel failed to produce that would have brought about a different result on his PCR petition. Defendant does not attach any affidavits or certifications supporting the contention that PCR counsel failed to investigate his position. Rather, defendant merely argues that "[t]here is no indication from the record" or that "it does not even appear" that PCR counsel investigated the matter. Bare assertions without any factual support are not sufficient to establish ineffective assistance of PCR counsel. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Slater, 198 N.J. 145, 158 (2009) (noting that "a bare assertion of innocence is insufficient to justify withdrawal of a plea.").
On his pro se PCR motion, defendant essentially acknowledges he received the benefit of the bargain when he states, "[p]petitioner does not wish to vacate the plea for aggravated manslaughter pursuant to N.J.S.A. 2C:11-4.a[.]" He, nevertheless, urges that trial counsel was ineffective, and he should have been sentenced one degree lower than the first degree crime to which he pled guilty. Our courts have recognized that "a key component of plea bargaining 'is the 'mutuality of advantage' it affords to both defendant and the State.'" State v. Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80 N.J. 353, 361 (1979)). Thus, "plea bargaining 'enables a defendant to reduce his penal exposure and avoid the stress of trial while assuring the State that the wrongdoer will be punished and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the controversy.'" Ibid. (quoting Taylor, supra, 80 N.J. at 361). The PCR judge appropriately determined that there is no compelling reason to disturb the mutuality of advantage in this case.
It is most significant that defendant took the benefit of the plea agreement and did not appeal the judge's exercise of discretion respecting the aggravating and mitigating factors and did not mount a timely challenge to the judge's imposition of the sentence in accordance with the plea agreement. As the PCR judge accurately observed, "[t]here is just nothing in this case that would prevent this matter [sic] from simply appealing his sentence and saying that the judge didn't cite mitigating factors. He didn't -- these mitigating factors didn't apply." Although the PCR judge concluded the mitigating factors now advocated by defendant did not apply, he further stated that if they applied, they would not have warranted a deviation from the negotiated plea agreement. We agree.
In effect, defendant is seeking to set aside or to modify the plea agreement. As the Court observed in State v. DiFrisco,
To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial. [137 N.J. 434, 457 (1994) (internal citations and quotes omitted), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996).]
Defendant did not meet that standard on his petition for PCR.
Defendant argues that the PCR judge should have granted him an evidentiary hearing since "a hearing would have provided the opportunity to remedy the lack of effort devoted to defendant's case by his attorneys at any stage of prior proceedings." The court "may grant an evidentiary hearing on a PCR petition if the defendant has established a prima facie case of ineffective assistance of counsel." State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005) (citing State v. Marshall, 148 N.J. 89, 157, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997)). However, "'[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.'" Id. at 558 (quoting Marshall, supra, 148 N.J. at 158). In Cummings, we explained: in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. [Cummings, supra, 321 N.J. Super. at 170.]
Here, as discussed above, defendant did not make a prima facie showing that he was denied effective assistance of trial or PCR counsel. He does not "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Rather, defendant makes "bald assertions" that both PCR and trial counsel were deficient by not investigating or appealing the case.
Finally*fn1 , defendant argues that the judge erred in holding that PCR was procedurally barred under Rule 3:22-3, -4 and -5, because "the petition is premised on a violation of defendant's constitutional right to effective assistance of counsel[.]" Our rules provide certain procedural bars for a PCR "[b]ecause post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings.'" Echols, supra, 199 N.J. at 357 (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). Thus, under Rule 3:22-4, an issue that defendant could have raised in a direct appeal, but failed to do so, will be barred from consideration on a PCR motion. As the Supreme Court has reminded us, "[a]lthough our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars." Echols, supra, 199 N.J. at 357 (quoting State v. Goodwin, 173 N.J. 583, 594 (2002)).
We realize that, in spite of our view that the procedural bar applies, we have expended considerable time and attention addressing the arguments raised by defendant in his appellate brief. All the issues he raised, apart from the claim of ineffective assistance of PCR counsel, could have been disposed of from the record on direct appeal. Whether the sentencing judge erred in failing to consider appropriate mitigating factors and whether those mitigating factors substantially outweighed the aggravating factors were issues that could have been raised on appeal. They were not. Hence, they are barred.