On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-07-1188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 3, 2010
Before Judges Axelrad and Espinosa.
Defendant Drago Rodriguez appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant asserts a disparate sentencing claim and argues ineffective assistance of PCR counsel in failing to adequately address this issue. We affirm.
Defendant was charged in Hudson County Indictment No. 04-07-1188 with two counts of first-degree kidnapping, two counts of first-degree armed robbery, second-degree burglary, third-degree criminal mischief, third-degree unlawful theft or receipt of a credit card, two counts of third-degree criminal coercion, two counts of third-degree terroristic threats, eight counts of second- and third-degree aggravated assault, two counts of third-degree theft, third-degree receiving stolen property, and six counts of second-, third- and fourth-degree weapons offenses.
On January 3, 2005, defendant pled guilty to one count of first-degree armed robbery, N.J.S.A. 2C:15-1, and also pled guilty to three other indictments that are not the subject of this PCR petition. Along with statements acknowledging the knowing and voluntary nature of his plea, defendant stated that on July 9, 2003, he and two other individuals committed a robbery by entering the home of Neal Berger, and after he threatened the victim with a gun, he took, without the victim's permission, a painting, money and ATM cards.
On February 25, 2005, defendant was sentenced pursuant to the negotiated plea agreement as a second-degree offender to a nine-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence was also subject to a five-year period of parole supervision following his release as required for a crime of the first degree, N.J.S.A. 2C:43-7.2c, which defendant agreed to and expressly acknowledged on the record. All other counts of the indictment were dismissed. Defendant did not file a direct appeal of his conviction or sentence.
In May 2007, defendant filed a pro se PCR petition seeking to correct an "illegal sentence" based on the argument that the five-year period of parole supervision, which is consecutive to the NERA term, exceeds the sentencing range for a second-degree offense. On November l6, 2007, the court denied defendant's motion in a letter opinion. Defendant appealed and we remanded to the PCR court so defendant could be assigned counsel to represent him on his application. Counsel then submitted a letter brief elaborating upon defendant's illegal sentence argument and asserting ineffective assistance of trial counsel in connection with that issue. Among other attachments, counsel submitted defendant's pro se submissions and his letter to counsel requesting that a disparate sentencing claim also be raised.
At oral argument on the PCR motion on July 30, 2009, defense counsel addressed the illegal sentence argument based on the five-year parole period consecutive to the NERA term and the related claim of ineffective assistance of trial counsel. He then allowed defendant to make the disparate sentencing argument. Defendant represented to the court that his co-defendant, Eric Stawke*fn1 , had the "same charge, same crime . . . was sentenced as a second[-]degree offender, [but] he got seven years with eighty[-]five percent with three years parole [supervision]," which apparently was the plea arrangement defendant had unsuccessfully attempted to secure. The judge then engaged in a colloquy with defendant about his knowledge and acceptance of all the terms of the plea, including the NERA parole disqualifier and parole supervision components and his extensive criminal record. He gave defendant the opportunity to make any further statements, which defendant declined. The prosecutor, who was involved at the time of the plea, then explained that the State had negotiated different plea arrangements with defendant and co-defendant because of defendant's extensive criminal record and co-defendant's agreement to inculpate and testify against defendant if defendant had chosen to proceed to trial. Though stating he was not ruling on the disparate sentencing issue because it was not raised in the papers, the judge noted that defendant's six prior felony convictions, coupled with the four he pled to, and co-defendant's agreement to testify were sufficient grounds alone for the disparity in the sentences. The judge then rejected defendant's other arguments and concluded defendant had not made a prima facie case showing ineffective assistance of counsel to warrant an evidentiary hearing. The judge's ruling denying defendant's PCR application was memorialized in an order of July 30, 2009. This appeal ensued.
On appeal, defendant argues the PCR judge erred in refusing to consider and rule on his disparate sentencing argument, and his PCR counsel was ineffective for failing to brief and present arguments on that issue. Defendant contends he is entitled to a remand, assignment of new counsel and an evidentiary hearing. We are not persuaded by defendant's arguments.
Defendant acknowledges that a challenge to an excessive sentence within legal limitation, as distinguished from an illegal sentence, is not an appropriate ground for PCR relief and that the former is ordinarily remediable only by way of direct appeal. R. 3:22-2(c); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971). Such rule, however, may be relaxed in egregious circumstances. State v. Clark, 65 N.J. 426, 437-38 (1974) (rule preventing "excessive sentence" claims from being raised in a PCR proceeding relaxed due to egregious circumstances presented, involving the defendant not being informed of his right to file an appeal and consecutive sentences being imposed contrary to fundamental purposes of the Sex Offender Act under which the defendant had been convicted). Defendant was expressly informed at sentencing of his right to file an appeal and chose not to do so; he has provided no explanation for his failure to raise the disparate sentencing argument on direct appeal. Defendant's mere statement that the "disparity is egregious" is clearly an insufficient basis for relaxation of the Rule.
We thus presume that based on the procedural bar alone, PCR counsel made a tactical decision not to discuss the disparate sentencing issue in his brief or at argument but to simply include it in the attachments as an issue raised by defendant and to allow defendant to address it at oral argument. It would have been preferable if counsel had expressly incorporated that specific claim as one defendant wished to raise, rather than just including defendant's letter as an attachment, to avoid the issue being overlooked by the court. Nonetheless, we are satisfied PCR counsel provided effective assistance to defendant. See State v. Webster, 187 N.J. 254, 257 (2006) (holding that the PCR brief must advance the arguments that can be made in support of the petition and include the defendant's remaining claims, either by listing them or incorporating them by reference so the judge may consider them).
We are also satisfied that not only is defendant unable to satisfy the first prong necessary to prevail on a claim of ineffective assistance of counsel, i.e., deficient performance, he is also unable to satisfy the second prong, namely, that such defect in performance prejudiced his 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." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S.Ct. 2052, ...