March 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN HOLT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2011
Before Judges Fuentes and Ashrafi.
Defendant John Holt appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel at his sentencing. We affirm.
On January 20, 2004, defendant committed an armed robbery of a check cashing business. He was arrested outside the business immediately after the robbery, and a loaded gun was recovered from him. The police were waiting as he left the premises because they had received information from a confidential informant that defendant planned to commit the robbery. After his arrest, defendant made statements that he robbed the check cashing store because he needed money.
In March 2005, defendant was indicted on six counts: first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3f; third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. On August 1, 2005, defendant entered into a plea agreement and pleaded guilty to the armed robbery charge. The plea agreement provided for a seventeen-year sentence with eighty-five percent of that term to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On September 9, 2005, defendant was sentenced in accordance with the plea agreement. He did not appeal the sentence.
On June 13, 2007, defendant filed a pro se motion to correct his sentence under Rule 3:21-10b because it was allegedly an illegal sentence. The trial court treated defendant's motion as a petition for post-conviction relief under Rule 3:22. Counsel was appointed, and he filed a brief and an affidavit by defendant in support of the petition.
Defendant asserted that he had been induced to commit the robbery by the confidential informant but had agreed to enter a guilty plea rather than pursue an entrapment defense because of his extensive criminal record. He claimed the informant had set him up to be arrested by urging him to commit the robbery, supplying the gun and a stolen vehicle, and fixing the time and location of the robbery. He argued his attorney at the time of the sentencing provided ineffective assistance in that he did not ask the court to find mitigating factors arising out of a potential entrapment defense. Defendant did not seek to withdraw his guilty plea but only a reduction of his sentence.
The PCR court heard argument and denied the motion without holding an evidentiary hearing. Defendant then filed this appeal. Before us, he argues:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING.
THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST BE REVERSED.
We reject these arguments.
Before imposing sentence, the sentencing judge reviewed the presentence report, in particular, defendant's prior criminal record. Defendant had previously been sentenced to state prison at least five times, dating back to 1986. He had a history of numerous arrests and convictions, many of which were for theft-related or robbery charges, and others for weapons charges and assaultive conduct. In fact, it appears that defendant was arrested for the robbery in this case just one month after receiving a suspended sentence on an attempted burglary charge.
Based on defendant's criminal record and other information in the presentence report, the sentencing judge appropriately found three aggravating factors applicable to defendant's sentence - aggravating factor three, a risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); aggravating factor six, the extent and seriousness of defendant's criminal history, N.J.S.A. 2C:44-1a(6); and aggravating factor number nine, the need to deter defendant and others from criminal conduct, N.J.S.A. 2C:44-1a(9). The court found no mitigating factors applicable.
Defendant argues that his attorney's performance at sentencing was deficient because he should have argued for application of three mitigating factors - number three, that in committing the robbery defendant acted under a strong provocation, N.J.S.A. 2C:44-1b(3); number four, that there were grounds tending to excuse or justify defendant's conduct although failing to establish a defense to the charges, N.J.S.A. 2C:44-1b(4); and number eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8). He argues that these mitigating factors applied because the confidential informant induced him to commit the robbery at a time when defendant needed money.
Defendant's argument is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). The mitigating factors asserted did not apply to the circumstances of defendant's conviction. Defendant admitted that he agreed to commit the robbery, thus refuting that there was an excuse or justification for his criminal conduct. Also, inducement to commit a crime is not the same as provocation, and the circumstances were clearly not ones that were unlikely to recur.
We also note that PCR counsel acknowledged defense counsel's unusually effective representation of defendant in negotiating a plea for a seventeen-year sentence although defendant had been caught red-handed committing a robbery and had an extensive prior record of similar crimes. As conceded before the PCR court, defendant was facing a potential sentence of between twenty years and life imprisonment as a persistent offender under N.J.S.A. 2C:44-3a and 2C:43-7a(2). In addition, the second-degree charge of possession of a weapon by a convicted person carried the potential for a minimum five-year consecutive sentence. See N.J.S.A. 2C:39-7. The record suggests that it was defense counsel's aggressive pursuit of a defense based on the informant's role that persuaded the prosecutor to offer a deal within the first-degree range and to cap defendant's sentence at seventeen years.
We also reject defendant's contention that the PCR court erred in dismissing his petition without holding an evidentiary hearing. An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, an evidentiary hearing would not have been beneficial in assessing whether any of the alleged mitigating factors were applicable.
Finally, having determined that defendant did not show a prima facie case of ineffective assistance of counsel, we need not address the State's argument that his petition was barred by Rule 3:22-4 because he could have challenged his sentence by means of a direct appeal.
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