On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-05-1197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011 - Decided Before Judges Lisa and Alvarez.
Defendant, Linda Consolino, appeals from the June 5, 2009 order denying her petition for post-conviction relief (PCR). Defendant was indicted for murder and other offenses. Pursuant to a plea agreement, the murder charge was amended to first- degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). The plea agreement recommended an aggregate sentence not to exceed twenty-five years imprisonment, with an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On April 20, 2004, defendant entered her guilty plea. On July 8, 2004, the court sentenced defendant to twenty-two years imprisonment with an 85% parole disqualifier and five years parole supervision for aggravated manslaughter. All other counts were either merged or sentenced concurrently.
Defendant appealed. On September 20, 2005, we remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Consolino, No. A-0273-04 (App. Div. September 20, 2005). On November 18, 2005, the court re-imposed the same sentence. Defendant's appeal, in which we had retained jurisdiction, returned to this court and was considered on our excessive sentence oral argument calendar. See R. 2:9-11. After hearing oral argument on September 19, 2006, we issued an order on September 20, 2006 affirming defendant's sentence.
Defendant filed her PCR petition on October 29, 2008. She argued that both trial and appellate counsel were ineffective for failing to adequately argue mitigating factors. She also argued that she had provided an insufficient factual basis to support her conviction of aggravated manslaughter. After hearing oral argument, the court denied defendant's petition without granting an evidentiary hearing. This appeal followed.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENSE COUNSEL FAILED TO EFFECTIVELY ADVANCE MITIGATING FACTORS ON DEFENDANT'S BEHALF.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial of PCR, but add the following brief comments for the sake of completeness.
Defendant and her boyfriend, co-defendant Brian Paladino, were living in a trailer with another individual, Nicholas Frega. On August 17, 2000, Paladino and Frega were engaged in a physical altercation. Frega was extremely intoxicated. During the course of the altercation, Paladino asked defendant to get him a knife. Defendant handed Paladino a butcher knife from the kitchen. She acknowledged at her plea hearing that when Paladino asked her to get a knife, she knew that Frega was probably going to be killed. Indeed, Paladino stabbed Frega to death. Defendant then assisted Paladino in cleaning up the trailer and disposing of Frega's body and the weapon.
At sentencing, defendant's trial counsel produced a report issued by Lois Nardone, a social worker. Referring to the report, counsel made an extensive presentation detailing a history of emotional, physical and sexual abuse that defendant had suffered. Counsel argued that these experiences resulted in defendant entering into abusive relationships with men. Counsel did not specifically identify any mitigating factors that the court should find ...