On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2472.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011
Before Judges Wefing and Payne.
On August 10, 2005, defendant, Christopher Burns, held up at gunpoint an employee of a Dollar Tree Store where Burns was also employed as the employee, his boss, sought to deposit the day's receipts at a Wachovia Bank in Ocean Township. The gun was supplied by co-defendant Willie Dixon, who also acted as lookout and was to share in the proceeds of the robbery. Upon apprehension, Dixon confessed, displaying contrition. It does not appear that defendant admitted to the crime except during his plea. At sentencing, he sought to disavow his acts.
Dixon was offered a plea to an accusation of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1, with a sentence of seven years of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge, taking into account Dixon's lack of criminal record, his strong family support, his contrition and cooperation with the police, the fact that he had just lost his job, his need for money to support his two children, and his use of marijuana, sentenced Dixon to five years, subject to NERA.
Defendant Burns was offered a plea to first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, with a sentence of fifteen years in prison, which the judge agreed to reduce to ten years, subject to NERA. The judge stated that the reduced sentence was "based on the sentence that I gave to your co-defendant." Additionally, he stated that he had taken into account defendant's youth, his lack of a significant criminal history, and the fact that his sentence was subject to NERA. Defendant took the plea offer.
At sentencing, the judge noted that defendant had some prior juvenile and municipal criminal involvement, he was employed, he had not completed high school, and he was married and had one child. After finding aggravating factor nine (the need to deter) and mitigating factors three (that defendant acted under strong provocation, consisting of financial difficulties) and seven (his lack of a prior indictable criminal history), N.J.S.A. 2C:44-1a(9) and -1b(3) and (7), and finding that the aggravating factor "substantially" outweighed the mitigating factors, the judge imposed a ten-year sentence subject to NERA on the armed robbery charge and a concurrent sentence of five years in prison with a three-year period of parole ineligibility on the weapons conviction.
Defendant appealed his sentence, and his appeal came before us on an excessive sentence, oral argument calendar, at which time defense counsel, arguing disparate sentencing, sought a second-degree sentence of five years subject to NERA. We implicitly declined to accept counsel's argument, noting that Burns and Dixon pled guilty to different crimes of different degrees. Additionally, to impose a second-degree sentence, the judge would have had to be convinced that the mitigating factors clearly and convincingly outweighed the aggravating factors, which did not occur in this case. However, we remanded the matter for merger of the weapons conviction into that for armed robbery.
Defendant then moved for post-conviction relief (PCR), arguing that trial counsel had been ineffective in failing to argue for a reduction of the robbery charge to a second-degree crime, in failing to request merger of the robbery and weapons convictions at sentencing, and in failing to address sentencing disparity. PCR was denied by the judge without a hearing.
In doing so, the judge rejected the argument that counsel had been ineffective in failing to seek a downgrade in the robbery charge, ruling that the argument was essentially one of an excessive sentence that could only be addressed on direct appeal. The judge also rejected defendant's merger argument as moot, noting that we had ordered merger and it had occurred. Additionally, the judge noted that defendant's sentencing disparity argument had in fact been raised before us, and that it was implicit in the record that we had determined that Dixon and Burns were not similarly situated. Because the issue was thus previously decided, it was barred on PCR. As a final matter, the judge found that defendant's argument that additional mitigating factors should have been found and that counsel was ineffective in failing to press that argument was an excessive sentencing argument that could only be raised on direct appeal.
Turning to the merits, the judge noted that to downgrade a charge, the judge must be clearly convinced that the mitigating factors substantially outweighed the aggravating factors, and such was not the case here. Thus, even if counsel had sought a downgrade, it would not have been granted. Further, the judge found no prejudice to defendant as the result of the alleged ineffectiveness of counsel at sentencing, since defendant received the lowest sentence possible for a first-degree crime. He similarly was not prejudiced by counsel's failure to seek merger of the two convictions, since they had been merged on remand. The judge also determined that counsel was not ineffective in not arguing sentencing disparity more strongly, since Burns's and Dixon's crimes were not substantially similar, and thus similar sentences were not required. The judge rejected defendant's argument that trial counsel had failed to sufficiently emphasize the differing levels of participation in the crimes at sentencing, since defendant had already been promised the lowest possible first-degree sentence. With respect to defendant's argument that counsel should have raised a defense of duress, the judge noted counsel's statement during sentencing that the defense had been previously discussed and that defendant had agreed with counsel's conclusion that the defense was meritless. The judge also found that trial counsel had adequately developed the record in support of mitigating factors.
On appeal, defendant raises the ...