On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2305.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011 - Decided: Before Judges Axelrad and J. N. Harris.
Defendant Larry Smith appeals from the March 13, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. He alleged ineffective assistance of trial counsel in failing to investigate whether the attempted murder charge was a second- degree crime and coercing him to plead guilty to a first-degree crime, as well as failing to present certain mitigating factors at his sentencing. We affirm.
Defendant was charged by the Camden County Grand Jury in an eight-count indictment (No. 03-02-0791): third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); second-degree weapons possession during the CDS offense, N.J.S.A. 2C:39-4.1a (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count five); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count six); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1) and -5b(3) (count seven) *fn1 ; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count eight).
Defendant was also charged by the grand jury (Indictment No. 03-03-1803) with one count of fourth-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1) and -5b(12). Defendant was further charged by Accusation with first-degree attempted murder of Edward Kenny, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (No. 03-06-2305), and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (No. 03-06-2306).
Pursuant to a negotiated agreement, defendant pled guilty on June 23, 2003 before Judge Natal to first-degree attempted murder, second-degree certain persons not to have weapons, fourth-degree possession of CDS with intent to distribute, and fourth-degree violation of a drug restraining order under a prior indictment.
Two months later, Judge Natal imposed the negotiated sentence of a twelve-year custodial term with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree offense, with concurrent terms on the other offenses to which defendant pled and dismissal of the remaining counts of the indictments.
Defendant did not file a direct appeal challenging either his guilty plea or the sentence. However, defendant filed a pro se petition for PCR on October 20, 2005 challenging the NERA term. By order of March 1, 2006, the court dismissed the petition as procedurally barred, having found the claims raised by defendant pertained to the legality of the sentence and thus were appropriate for consideration as a motion to correct an illegal sentence.
Defendant filed this PCR on April 22, 2008, which was denied by Judge Natal on March 13, 2009, following oral argument. In a pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial counsel in failing to investigate whether the attempted murder offense could be categorized as a second-degree offense instead of a first-degree one, in coercing defendant to plead guilty to the first-degree crime, and in failing to investigate or raise a number of mitigating factors that should have been considered by the sentencing judge.*fn2 According to defendant, had trial counsel urged these newly-minted applicable mitigating factors, the court could have sentenced him one degree lower on the first-degree attempted murder conviction. PCR counsel urged that defendant's position was not that his sentence was excessive, but that it was "impermissibly imposed by virtue of [trial counsel's] lack of diligence" in bringing to the court's attention all the applicable mitigating factors.
Judge Natal specifically found that while defendant couched his claims as an attack upon trial counsel's performance, the claims, in essence, pertained to the actual sentence defendant received under the plea agreement. Accordingly, the claims were procedurally barred because they were appropriate for direct appeal as excessive sentence challenges and not appropriate grounds for PCR review. See R. 3:22-2(c) (stating that alleged excessive sentences within legal limitation are ordinarily remediable only upon direct appeal and not upon PCR); R. 3:22-4(a) (barring on PCR claims that could have been raised on direct appeal).
Nevertheless, the judge addressed and rejected each of defendant's claims as without substantive merit, and provided a detailed explanation as to why defendant failed to establish a prima facie case of ineffective assistance of counsel with respect to his guilty plea and sentence under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068,80 L. Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's 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."). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l29 N.J. 451, 462-63 (l992) (To establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits.).
Specifically, Judge Natal held that defendant failed to substantiate his claims with any affidavits or certifications. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Citing from the plea colloquy, the court additionally found defendant's challenge to the first-degree offense directly contradicted the record in which defendant admitted he shot at the victim with the intention of killing him. Similarly, the court found defendant's specific statements during the plea colloquy directly contradicted his claim of coercion.
Judge Natal also found defendant had ample opportunity at the plea and sentencing hearings, as well as during the presentence interview, to raise any mitigating factors he deemed applicable. The judge noted he had found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a(3), (6) and (9), the risk defendant would commit another offense, the extent and nature of defendant's prior criminal record, and the need to deter defendant and others from violating the law, and only as to the drug offense found mitigating factor N.J.S.A. 2C:44-1b(2), that defendant did not contemplate his conduct caused or threatened serious harm. He explained why defendant's newly suggested mitigating factors were not supported by the record, emphasizing that ...