January 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN PETERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-04-0798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 -- Decided Before Judges Yannotti and Skillman.
Defendant Shawn Peterson appeals from an order entered by the Law Division on August 25, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Bergen County Indictment No. 99-04-0798 with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (counts two and three); first-degree robbery, N.J.S.A. 2C:15-1 (counts four and seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and eight); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts six and nine).
On October 4, 1999, defendant pled guilty to counts four and seven. In the plea agreement, the State agreed to recommend the imposition of concurrent, twenty-year terms, each with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to the dismissal of the other charges.
Defendant was sentenced on November 12, 1999. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court sentenced defendant to concurrent, eighteen-year terms, each with a parole ineligibility term as required by NERA. The court also imposed appropriate fines and penalties. Defendant did not file a direct appeal from the judgment of conviction dated January 14, 2000.
Defendant filed a pro se petition for PCR dated February 20, 2009. With his petition, defendant submitted a certification seeking leave to file the petition beyond the time required by Rule 3:22-12. The court assigned PCR counsel to represent defendant, and counsel filed an amended PCR petition with a supporting brief.
In the brief, PCR counsel argued that defendant's petition should not be barred on procedural grounds. He also argued that defendant was denied the effective assistance of trial counsel because defendant's attorney failed to file a motion to consolidate the charges in this case with those pending in Hudson and Passaic counties. He additionally argued that trial counsel was deficient because he did not file a direct appeal and/or a timely PCR petition.
The court heard the matter on August 25, 2009, and placed its decision on the record on that date. The court held that the time bar in Rule 3:22-12 did not preclude consideration of the petition. The court therefore considered the matter on the merits. The court found that defendant had not been denied the effective assistance of trial counsel. The court noted that, under the plea agreement negotiated by defendant's attorney, seven of the nine counts of the indictment had been dismissed and the court had imposed concurrent, eighteen-year terms, rather than the concurrent, twenty-year terms permitted by the agreement.
The court also noted that counsel was not deficient in failing to seek consolidation of the charges with those in Hudson and Passaic counties, because there was no indication that defendant would have received a shorter sentence if the charges had been consolidated. The court entered an order on August 25, 2009, denying PCR.
On appeal, defendant raises the following arguments for our consideration:
POINT I: THE TRIAL COURT PROPERLY CONCLUDED THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED PURSUANT TO RULE 3:22-12.
POINT II: THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM POST CONVICTION RELIEF COUNSEL.
We have thoroughly reviewed the record and conclude that defendant's arguments are without merit. We accordingly affirm the order denying PCR substantially for the reasons stated by the PCR court in its oral decision rendered on August 25, 2009. We add the following comments.
Rule 3:22-12 provides that a PCR petition may not be filed more than five years after the entry of the judgment of conviction being challenged "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." In this matter, defendant filed his PCR petition about nine years after the judgment of conviction was entered.
Defendant contends that his petition was not barred by Rule 3:22-12 because, beginning in 2004, he retained three successive attorneys, who all failed to file a PCR petition on his behalf. We are convinced that, under these circumstances, the PCR court did not err by determining that the petition was not barred by Rule 3:22-12 and considering defendant's petition on the merits.
Next, defendant argues that he was denied the effective assistance of PCR counsel. Defendant contends that PCR counsel was deficient in his handling of defendant's claims. Defendant had asserted that trial counsel erred by failing to seek consolidation of the Bergen County charges with those pending in Hudson and Passaic counties and to file a direct appeal. According to defendant, PCR counsel did not present the trial court with an adequate factual record to support his claim of ineffective assistance of counsel.
Defendant further contends that that PCR counsel erred by failing to demonstrate that trial counsel was deficient because trial counsel failed "to argue strenuously enough" for findings on certain mitigating factors, specifically, mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense"); eight, N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances unlikely to recur"); nine, N.J.S.A. 2C:44-1(b)(9) ("character and attitude of the defendant indicate that he is unlikely to commit another offense"); and twelve, N.J.S.A. 2C:44-1(b)(12) ("willingness of the defendant to cooperate with law enforcement authorities"). Defendant argues that had trial counsel raised these points, the court would have imposed a shorter sentence.
Defendant's ineffective-assistance-of-counsel claim is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which govern the consideration of such claims under the Sixth Amendment to the United States Constitution. Our Supreme Court has adopted these standards for evaluating ineffective- assistance-of-counsel claims raised under our State's Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists 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.
We are satisfied that defendant was not denied the effective assistance of PCR counsel. Even assuming that PCR counsel erred in his handling of this matter, defendant has not shown that the PCR court would have reached a different decision had counsel handled the matter along the lines that defendant suggests.
According to the State, defendant was charged with the commission of twelve separate armed robberies on four days over ten weeks in Bergen, Hudson and Passaic counties. As the PCR court found, it is highly unlikely that a shorter sentence would have been imposed on the Bergen County charges if they had been consolidated with the charges pending in Hudson and Passaic counties. Indeed, the sentencing judge might have been less likely to impose concurrent, eighteen-year terms if faced with the multiplicity of charges from other counties.
Moreover, as the PCR court pointed out, defendant's attorney successfully negotiated a plea that led to the dismissal of seven of the nine charges at issue in this case. Counsel also succeeded in convincing the court to impose an eighteen-year sentence, rather than the twenty years permitted by the plea agreement. We are satisfied that, under these circumstances, it is highly improbable that a shorter sentence would have been imposed even if defendant's attorney had raised the points defendant says should have been raised at sentencing.
We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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