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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...