On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4890.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided
Before Judges Graves and Waugh.
Defendant Lizcett Almodovar appeals from the dismissal of her petition for post-conviction relief (PCR), in which she had argued that her defense attorney provided ineffective assistance of counsel at her sentencing hearing. We affirm.
In December 2004, Almodovar was charged in nine out of twelve counts of an indictment arising out of the robbery of a taxi company at which she had once been employed. During the robbery, the owner of the cab company was fatally shot by one of Almodovar's co-defendants.
On May 2, 2005, pursuant to a plea agreement, Almodovar pled guilty to a single count of first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a).*fn1 As part of the agreement, the prosecutor agreed to recommend an eighteen-year period of incarceration, with an eighty-five percent period of parole ineligibility. Almodovar also entered into a cooperation agreement with the State. The remaining counts were to be dismissed at the time of sentencing.
At the plea hearing, the judge went through the plea agreement and satisfied himself that Almodovar understood her rights, the terms of the agreement, and the consequences of the plea. He also asked defense counsel to establish the factual basis of the plea with his client. Almodovar testified that she meet with the co-defendants on November 17, 2003. She understood that they wanted to rob the office of the cab company where she used to work. She assisted one of the co-defendants in drawing a diagram of the office. She told them where the company's cash was stored and that they could expect to find approximately $3000.
Almodovar subsequently met the co-defendants near the cab company's office. She and a female co-defendant went into the office, and she asked for payment for the last week she had worked there. After she and the co-defendant left, they met the others and two male co-defendants entered the office. After the two men went into the office, Almodovar's female co-defendant informed her that one of the men was carrying a "burner," which she later learned referred to a gun.
Based upon his examination of Almodovar and the factual basis adduced by defense counsel, the judge concluded that she entered into the plea "knowingly, intelligently and voluntarily." He also concluded that there was a factual basis for the plea.
Almodovar appeared for sentencing on June 24, 2005. Although she was represented by the same defense attorney who had appeared at the plea, he did not address the judge with respect to aggravating and mitigating factors, nor did he argue that a sentence below the eighteen years mentioned in the plea agreement should be imposed. Instead, he relied solely on a letter Almodovar had written to the judge.*fn2 Almodovar did address the judge, expressing remorse for her participation in the robbery.
The judge made the following findings with respect to the aggravating and mitigating factors.
All right. Ms. Almodovar, to say that this is tragic doesn't begin to describe what occurred here.
A man who was obviously someone who was a very productive member of society, someone who was running a business that was a service to many people, someone who was an individual, who was certainly an inspiration to the members of his family is gone and you played a very, very significant role in creating the circumstances that led to his murder.
And, while I understand the regret, I understand the concept of penance, I understand the concept that you made a mistake, those things are all real insofar as your thinking, and I don't for a moment conclude that you're not sincere in those thoughts, but one can only conclude that that mistake couldn't have been bigger. And, when you call it a mistake, I don't think it fully describes it, because there was a consciousness of what you were doing.
I know that you hoped for a robbery and not a death in connection with this. I know that the intent was money. But there was a chain of activities or a chain of events that was set in motion by you and I find that there had to be a very clear awareness because as these . . . matters moved forward, it was clear that there was a gun involved, . . . it was clear that there were the very risks of death that actually came to fruition here.
So, though I understand your position, I find that there was a . . . very, very conscious level ...