February 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LINDA CONSOLINO A/K/A LINDA JOYCE CONSOLINO, SHORTY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 applicable, but he forcefully argued that the contents of Nardone's report should be considered in imposing sentence.
In setting forth his reasons for imposing sentence, the judge took into account defendant's dysfunctional childhood and history of abuse. However, the judge did not explicitly find the applicability of any mitigating factors based on this information. See N.J.S.A. 2C:44-1b. The judge found four aggravating factors applicable, namely factors two (the vulnerability of the victim), three (risk of another offense), six (defendant's prior criminal record), and nine (the need to deter). See N.J.S.A. 2C:44-1a(2),(3),(6),(9). The judge found that the aggravating factors "substantially and overwhelmingly" outweighed the mitigating factors. Considering all of the information before him, the judge imposed a sentence three years below the maximum recommended in the plea agreement, but nevertheless two years above the twenty-year mid-range of authorized sentences for aggravated manslaughter. See N.J.S.A. 2C:11-4c.
A defendant must establish two elements to prove ineffective assistance of counsel. First, he or she must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987). This test applies equally to trial and appellate counsel. State v. Bray, 356 N.J. Super. 485, 498 (App. Div. 2003).
PCR is not a substitute for direct appeal, R. 3:22-3, and cannot be used as an opportunity to litigate issues that could have been raised on direct appeal. R. 3:22-4. Thus, defendant's belated assertion that her factual basis was inadequate and that certain mitigating factors should have been considered is procedurally barred. The arguments also lack substantive merit.
The factual basis defendant provided at her plea hearing was sufficient to support her conviction of aggravated manslaughter. Defendant argues on this appeal that her trial and appellate counsel should have urged the applicability of mitigating factors three (strong provocation), four (substantial grounds tending to excuse defendant's conduct, though failing to establish a defense), and twelve (cooperation with law enforcement authorities). See N.J.S.A. 2C:44-1b(3),(4),(12). Factor three is inapplicable, because there is nothing in the record to support a finding that the victim, Frega, provoked defendant's conduct. Factor twelve is also inapplicable, because defendant did nothing more than give a statement regarding the crime with which she was charged and enter a negotiated guilty plea. Finally, as to factor four, although defendant had a troubled background, she did not present evidence to demonstrate a causal link between that background and her conduct in this crime. Nevertheless, although not specifically identifying mitigating factor four, the judge did take defendant's background into account in imposing sentence.
We agree with the PCR court that defendant failed to establish deficient conduct by her trial or appellate counsel. Accordingly, we find no error in the denial of PCR.
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