On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 03-02-0718 and 03-02-0719.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010 - Decided Before Judges Carchman and Waugh.
Pursuant to a negotiated plea agreement, defendant Angela Brantley entered a guilty plea to first-degree robbery, N.J.S.A. 2C:15-1, and on a separate indictment, to third-degree burglary, N.J.S.A. 2C:18-2. The judge sentenced defendant consistent with the plea agreement to an aggregate sentence of ten years imprisonment subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In sentencing defendant, the judge found aggravating factors but no mitigating factors. Defendant did not appeal but moved for reconsideration of the sentence, arguing that trial counsel failed to argue mitigating factors. Judge Lester, both the trial and motion judge, considered the motion as a petition for post-conviction relief (PCR) and denied the PCR. Defendant appeals, and we affirm.
We do not consider it necessary to provide an expansive review of the facts except to note that the charges arose from two incidents wherein defendant broke into the home of her elderly neighbor and, on the second occasion, confronted the victim with a toy gun and demanded money. She struck the victim and then removed the victim's purse.
After entering a plea, defendant was released on bail pending sentence. She failed to appear for sentencing and additionally, while on bail, was arrested for shoplifting and prostitution. A bench warrant was issued for her arrest, and she claimed she voluntarily surrendered to the police.
At the time of sentencing, her attorney argued for a lesser term and for mitigation of the sentence, asserting that defendant would suffer hardship because of her child. No other mitigating factors were offered, and the judge found none when imposing sentence.
At the PCR hearing, PCR counsel asserted that trial counsel was ineffective at sentencing because he did not argue mitigating factors and did not argue strenuously for a lesser sentence. PCR counsel contended that trial counsel should have raised the following mitigating factors at sentencing: (a) defendant did not contemplate that her conduct would cause or threaten serious harm N.J.S.A. 2C:44-1(b)(2); (b) defendant acted under strong provocation N.J.S.A. 2C:44-1(b)(3); (c) there were substantial grounds tending to excuse or justify the defendant's conduct though failing to establish a defense N.J.S.A. 2C:44-1(b)(4); (d) defendant had no history of prior delinquency or criminal activity or had led a law abiding life for a substantial period of time before the commission of the present offense N.J.S.A. 2C:44-1(b)(7); (e) the character and attitude of defendant indicated she was unlikely to commit another offense N.J.S.A. 2C:44-1(b)(9); (f) the imprisonment of defendant would entail excessive hardship to herself or her dependants N.J.S.A. 2C:44-1(b)(11); and (g) the willingness of defendant to cooperate with law enforcement authorities N.J.S.A. 2C:44-1(b)(12). PCR counsel argued that had trial counsel raised these factors as well as argued for a downgrade in sentence, the outcome would likely have been different.
Judge Lester found that trial counsel was not ineffective at sentencing. The judge found that mitigating factors two, three, four, seven, nine and twelve did not apply to defendant. She noted that defendant was charged under three separate indictments with three offenses against the same victim at the same location. Defendant did contemplate and threaten harm when she preyed upon the elderly, vulnerable victim who lived alone by breaking into her home at night in order to steal her purse.
The judge found that there was no evidence to support mitigating factors three and four. She noted that this PCR petition marked the first time defendant claimed to have been high when she committed the three offenses against the victim, and there was no evidence in the record to support this belated allegation. The judge observed that defendant told the probation department during her pre-sentence interview that she last used drugs prior to the three offenses committed against the victim. Under the circumstances, her trial counsel and the judge could not have known that she was high at the time of the offenses, if in fact she actually was. Moreover, defendant was given the opportunity to speak during the plea colloquy and sentencing, and she said nothing about being under the influence of narcotics at that time.
The judge also determined that mitigating factor seven did not apply based on defendant's prior criminal history. In addition, the judge found that mitigating factor twelve did not apply because defendant did not cooperate with law enforcement.
The judge stated that mitigating factor eleven arguably applied because defendant had a dependent. The judge observed that she granted defendant bail pending sentence to allow her to make arrangements for the child. However, even if this factor applied, the aggravating factors still outweighed the mitigating factors. Moreover, because NERA applied, a custodial sentence was mandatory. Defendant received the benefit of the plea she was promised and did not file an excessive sentence appeal. The judge concluded the trial counsel was not ineffective in failing to raise the mitigating factors, nor would the outcome have been different had counsel made the arguments now asserted in the PCR.
A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To obtain relief based upon a claim of ineffective assistance of counsel, defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Counsel's performance is deficient if it falls "below an objective standard of reasonableness." State v. Martini, 160 N.J. 248, 264 (1999) (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693). The defective performance is prejudicial if "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. The Strickland two-prong standard was adopted by the Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Castagna, 187 N.J. 293, ...