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State v. Pecoreno

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. On appeal, defendant argues that:

THE FAILURE TO DEFENDANT'S TRIAL COUNSEL TO ADEQUATELY INVESTIGATE AND OBTAIN SUPPORT FOR DEFENDANT'S ASSERTION THAT HIS IMPRISONMENT WOULD ENTAIL EXCESSIVE HARDSHIP TO HIS DEPENDENTS DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND DENYING DEFENDANT AN EVIDENTIARY HEARING ON THIS ISSUE CONSTITUTED AN ABUSE OF DISCRETION BY THE PCR COURT

We are convinced from our review of the record that these arguments are entirely without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

A defendant's claim of ineffective assistance of counsel is considered under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which has been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must establish that his attorney's performance was deficient and he was prejudiced by the attorney's errors. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.

To establish that his attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. In addition, to show that he was prejudiced by the deficient performance of his attorney, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

Here, defendant argues that he was denied the effective assistance of counsel because his trial counsel failed to provide the sentencing court with information concerning his grandmother's health and status. Defendant contends that, had counsel provided the court with this information, the court would have assigned greater weight to mitigating factor eleven and would have imposed a sentence of shorter duration than the seven years imposed on the aggravated sexual assault conviction.

We find no merit in this argument. As the PCR court stated in its decision, the trial court had received a letter from defendant's grandmother before imposing sentence. The trial court noted that defendant's grandmother had written that she was old and may not live to see her grandson again if he were incarcerated.

The trial court found that a finding of mitigating factor eleven was warranted because there was some evidence that a family member might suffer some hardship upon defendant's incarceration. The trial court added, however, that the record should reflect that the [c]court assesses and assigns only very slight weight to that mitigating factor because there is no evidence... that his grandmother, while she is a loved one and concerned about seeing her grandson and his well-being and offers her opinion as to what he needs to straighten out, is not a dependent who will suffer financially, economically or physically as a result of [defendant's] incarceration.

The court stated that, while the factor was "slightly present," it would give it "very little weight." In light of the trial court's findings, we are not convinced that the court would have assigned greater weight to mitigating factor eleven or, more importantly, would have imposed a shorter sentence if trial counsel had presented additional information concerning defendant's grandmother's health and status.

We note additionally that defendant pled guilty to aggravated sexual assault, which is a first degree offense. In the plea agreement, the State agreed that defendant would be sentenced, as though he had been convicted of a second degree offense, to a term not to exceed seven years. At sentencing, the trial court stated that its weighing of the aggravating and mitigating factors warranted sentencing defendant as if he had been convicted of a second degree offense. The trial court determined, however, that the record did not warrant imposition of a sentence shorter than the presumptive seven-year term for such an offense. The trial court stated that the sexual assault of which defendant was convicted was a "horrible, horrible crime[.]"

The record therefore established that, even if defendant's attorney had presented the trial court with additional information concerning defendant's grandmother, it was unlikely that the court would have imposed a different sentence. Thus, defendant was not prejudiced by counsel's failure to present that information to the court.

Defendant also argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. We disagree. An evidentiary hearing was not required because defendant failed to establish a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

20100524

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