January 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARYL HEARNS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 03-09-0918, 04-04-0208 and 04-04-0211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010
Before Judges Carchman and Messano.
Defendant Daryl Hearns appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. It is undisputed that on July 12, 2004, defendant pled guilty to single counts in three pending indictments, specifically two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The plea bargain called for the State to recommend a maximum sentence of eighteen years in prison with and 85% period of parole ineligibility.
At the request of defense counsel, the judge permitted several members of defendant's family to speak at sentencing. They all urged leniency because defendant was the father of four children and had experienced a troubled early life. Defense counsel advised the judge that when defendant was eleven years old, "his only role model, [his] quasi-father died." Counsel further relayed that defendant was on his way to school that day when his uncle apparently collapsed and died in defendant's arms as he tried to help. Defense counsel also noted that the crimes to which defendant pled guilty occurred during a span of only two days. He asked the judge to sentence defendant in the range of thirteen to fifteen years, i.e., below the maximum permitted by the plea bargain.
The judge recognized the loss of defendant's "father figure" and the
"stunted development" that resulted. However, the judge also noted
that at the age of twenty-one, defendant had already amassed
twenty-two juvenile arrests, with six adjudications of delinquency,
and eighteen adult arrests with
two prior convictions for indictable offenses. The judge found
aggravating factors three, six and nine. N.J.S.A. 2C:44-1(a)(3) (the
risk of re-offense); (a) (6) (the extent of defendant's prior record);
and (a) (9) (the need to deter defendant and others).*fn1
Although not expressly finding any mitigating factors, the
judge noted, "It's almost inevitable that . . . a person ends up the
way [defendant] ends up given . . . the absolute absence of any figure
of discipline and control and guidance."
The judge sentenced defendant to fifteen-years imprisonment with an 85% period of parole ineligibility on each of the robbery counts, and a term of ten years with an 85% period of parole ineligibility on the aggravated assault count. All sentences were imposed concurrently to each other and concurrently to a term defendant was then serving. We affirmed defendant's sentence on appeal, remanding the matter to correct technical errors in the judgments of conviction. State v. Daryl Hearns, No. A-5328-05 (App. Div. May 3, 2007).*fn2
On February 6, 2009, defendant filed a pro se PCR petition alleging the ineffective assistance of counsel. He claimed that counsel failed to argue that "the deplorable circumstances of [defendant's] upbringing," in conjunction with the experience of his uncle's death, "resulted in post-traumatic stress as . . . commonly understood," and justified a finding of mitigating sentencing factor four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). Alternatively, defendant argued that the sentencing judge committed "plain error" by failing to find any mitigating factors.
At oral argument before the PCR judge, defendant claimed that trial counsel had rendered ineffective assistance by not "connect[ing] the dots" between defendant's troubled childhood and the crimes he committed. He further contended that the judge should have found a mitigating sentencing factor, articulated such a finding and properly weighed the aggravating and mitigating factors.
The PCR judge concluded that the sentencing judge had actually found mitigating factor four because "[t]here [wa]s no other reason to explain how [the judge] went from 18 [years] to 15 [years]." Noting further that the PCR record was "devoid of any psychological . . . psychiatric or medical expert certifications that would tie the defendant's offense[s] to any psychological or mental condition," the judge concluded defendant had failed to demonstrate that trial counsel rendered ineffective assistance. The judge also concluded that even if trial counsel had "connected the dots, there would have been no different result." He denied defendant's application and this appeal ensued.
Defendant now raises the following issues for our consideration:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL AND APPELLATE LEVEL; AS SUCH HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BELOW.
THE TRIAL COURT ERRED IN SENTENCING DEFENDANT BY FAILING TO ARTICULATE THE AGGRAVATING AND MITIGATING FACTORS.
We have considered these arguments in light of the record and applicable legal standards. We find them to be of insufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We therefore affirm and add only the following brief comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. He must demonstrate "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
Here, trial counsel's performance was not deficient. He vigorously advocated for a reduction of sentence below the maximum permitted by the plea bargain. He marshaled the comments of defendant's family members who provided the judge with personal pleas for leniency. Defendant has failed to produce any medical or psychological proof that could have been offered -- but for counsel's allegedly deficient performance -- to further buttress his argument that he suffered from "post-traumatic stress" as a result of his difficult childhood.
Moreover, even if counsel could have done more, defendant has failed to show the result would have been different. At the time of sentencing, defendant had amassed a significant criminal history. He was being sentenced for having committed three violent crimes. Defendant has failed to demonstrate any "reasonable probability" that his sentence would have been different.*fn3
Defendant's second point argues that the trial judge failed to articulate and properly weigh the aggravating and mitigating sentencing factors. Defendant sought appellate review of his sentence claiming it was excessive. As noted, we affirmed his sentence. Therefore, the argument he now raises is procedurally barred by Rule 3:22-5 ("A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceedings."). Moreover, the contention lacks merit. As the PCR judge noted, the trial judge clearly considered defendant's troubled past in mitigation of sentence.