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State v. Pecoreno

May 24, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN PECORENO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 03-10-1330 and 04-06-1147.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2010

Before Judges Yannotti and Chambers.

Defendant John Pecoreno appeals from an order entered by the Law Division on August 1, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Indictment No. 04-06-1147 with aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (count one); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count two). Defendant had previously been charged under Indictment No. 03-10-1330 with burglary, contrary to N.J.S.A. 2C:18-2 (counts one and two). On January 21, 2005, defendant pled guilty to aggravated sexual assault, as charged in count one of Indictment No. 04-06-1147, and both counts in Indictment No. 03-10-1330, which were amended to charges of conspiracy to commit burglary, contrary to N.J.S.A. 2C:5-2.

Defendant was sentenced on the aggravated sexual assault conviction to seven years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also was sentenced to two five-year terms on the conspiracy convictions, which were concurrent with each other and concurrent to the sentence imposed for the aggravated sexual assault conviction.

Defendant challenged his sentences on appeal. The appeal was heard on our excessive sentence calendar. We affirmed the conviction for aggravated sexual assault but remanded for re-sentencing on the two counts of conspiracy to commit burglary. State v. Pecoreno, No. A-728-06 (July 30, 2007).

Thereafter, defendant filed a pro se petition for PCR. Counsel was appointed and filed an amended petition, in which he alleged that defendant had been denied the effective assistance of counsel because at sentencing defendant's attorney failed to underscore certain mitigating factors and inform him that he would be subject to community supervision for life.

The court considered the petition on August 1, 2008, and rendered a decision from the bench on that date. The court found that trial counsel had sought findings of mitigating factors four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur); and eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will entail excessive hardship to defendant or his dependents).

The PCR court determined that defendant had not been denied the effective assistance of counsel because his attorney did not submit records concerning the medical condition of defendant's grandmother in support of a finding of mitigating factor eleven. In its decision, the PCR court pointed out that the trial court had received and considered a letter from defendant's grandmother and she did not mention her medical condition. The PCR court also observed that the record did not establish that defendant's grandmother was his dependent, as the trial court had noted at sentencing. The PCR court stated that the medical records would not have addressed the issue of dependency.

The PCR court additionally noted that trial counsel did not seek findings on mitigating factors five, N.J.S.A. 2C:44-1(b)(5) (defendant's victim induced or facilitated the offense); and twelve, N.J.S.A. 2C:44-1(b)(12) (willingness of defendant to cooperate with law enforcement authorities). The PCR court found that defendant was not prejudiced by counsel's failure to argue in support of those mitigating factors because the trial court had considered and weighed them when defendant was sentenced.

The PCR court also determined that there was no merit in defendant's contention that his trial attorney misled and misinformed him because counsel failed to explain that he would be subject to community supervision for life if he pled guilty. The PCR court noted that, when defendant entered his plea on January 21, 2005, he acknowledged that he had reviewed the relevant papers with his attorney and that he understood that he would be subject to lifetime community supervision.

The PCR court accordingly entered an order dated August 1, 2008, denying defendant's petition. This appeal followed. ...


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