On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 05-09-1919 and 05-09-2046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided Before Judges Wefing and Baxter.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The grand jurors of Atlantic County returned two indictments against defendant, alleging offenses between June 11 and July 16, 2005. The first, 05-09-1919, charged defendant with three counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. The second, 05-09-2046, charged defendant with first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree theft from the person, N.J.S.A. 2C:20-3. On May 22, 2007, defendant entered a negotiated plea of guilty on two of the counts of first-degree robbery contained in 05-09-1919 and the one count of first-degree robbery contained in 05-09-2046. The prosecutor agreed to recommend that defendant receive three concurrent sentences of ten years, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and the dismissal of the remaining charges. On July 27, 2007, the trial court sentenced defendant in accordance with the terms of this negotiated agreement, rejecting his attorney's request to sentence defendant as if for a second-degree crime.
In January 2009, defendant filed a pro se petition for post-conviction relief. Counsel was assigned to represent defendant and filed a brief on his behalf and argued orally in support of the petition, contending that defendant had received ineffective assistance from his trial attorney. The trial court rejected defendant's arguments, and this appeal followed. Defendant makes the following contentions on appeal:
POINT I THERE WAS INSUFFICIENT EVIDENCE BEFORE THE COURT TO DENY DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF. THE COURT ERRED IN DENYING DEFENDANT'S PETITION POINT II THE ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL.
The legal principles which govern the analysis of a claim of ineffective assistance of counsel are settled and well-known. We need not recite them in detail in this opinion. To prevail on such a claim, a defendant must establish both elements of a two-prong test. A defendant must demonstrate first, that the performance of the attorney was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693. In addition, "[t]he 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. New Jersey has expressly adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant's principal contention to the trial court in support of his petition, and repeated on appeal, is that the attorney who initially represented him before the trial court in connection with the plea and sentencing proceedings, was ineffective for not obtaining a psychiatric report with respect to defendant's mental illness. It was, and remains defendant's position, that if such a report had been obtained, he would have received a lesser sentence.
In our judgment, the trial court's conclusion that defendant failed to establish a sufficient basis for relief was entirely correct. A trial court may sentence defendant as if a crime were one degree lower only if it is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and that the interest of justice requires such a downgrade. State v. Megargel, 143 N.J. 484, 501-02 (1996);
N.J.S.A. 2C:44-1f(2). "Although the surrounding circumstances and the need for deterrence may be taken into account, the severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade." State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009) (citation omitted).
Here, we note that defendant received the least period of incarceration allowable for a first-degree crime. Further, he was permitted to serve his sentences concurrently, rather than consecutively. We also note, as did the trial court, the absence of a psychiatric report providing some basis for defendant's thesis. Further, defendant's pre-sentence report noted that he had a history of mental health problems, and his attorney commented upon that at his sentencing in support of the argument that he should receive a lesser term. Defendant's presentence report also noted, however, that while he only had one prior indictable conviction, he had a number of municipal court convictions for a variety of offenses.
We affirm the order denying defendant's petition for post-conviction relief substantially for the reasons stated by Judge Garofolo in ...