On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0602 and Accusation No. 04-09-1158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010 -
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the July 9, 2009 order denying his petition for post-conviction relief (PCR). We affirm the denial of PCR. However, we remand for re-sentencing on one count.
In September 2004, defendant was charged in an accusation with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2); third-degree theft, N.J.S.A. 2C:20-3(a); and two counts of fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e). He also faced an indictment for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). On September 16, 2004, pursuant to a negotiated plea agreement, defendant pled guilty to one count of first-degree armed robbery and fourth-degree possession of an imitation weapon, as well as the third-degree possession of heroin charge. Defendant gave a factual basis for the robbery charge, in which he acknowledged that he entered an adult bookstore holding a toy handgun "painted black to appear as if it were real," and threatened the proprietor with "the use of force by having a gun." The proprietor then handed defendant money in excess of $900.
On December 10, 2004, defendant was sentenced to a term of ten years with a parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), on the armed robbery charge; a concurrent four-year term on the possession of an imitation firearm charge*fn1 ; and a concurrent four-year term on the drug charge. Defendant did not file a direct appeal from his convictions and sentence.
On or about October 14, 2008, defendant filed a pro se PCR petition supported by a letter brief prepared by an inmate paralegal. Defendant claimed ineffective assistance of trial counsel for failure to present mitigating factors on his behalf at sentencing; he also asserted a right to a jury trial on the "sentence enhancement" under NERA. PCR counsel was assigned and filed an amended PCR petition, claiming that plea counsel "should have urged the court to consider mitigating factor[s] 2, 4, and 12[,]", namely that "defendant did not contemplate that his conduct would cause or threaten serious harm"; "[t]here were substantial grounds tending to excuse or justify . . . defendant's conduct, though failing to establish a defense"; and "[t]he willingness of . . . defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(2), (4) and (12). Had these mitigating factors been advanced, defendant contended, "the court's sentence might have been more favorable." Defendant requested an evidentiary hearing.
On July 9, 2009, the PCR judge heard oral argument and then rendered a decision from the bench denying the petition. The judge noted that at sentencing, counsel had "argued for a lower degree [of sentence] based upon [defendant's] drug addiction and remorse[,]" but the judge had "rejected this argument noting that [defendant] had . . . already received significant benefits as a result of the plea agreement."
The judge found that counsel could have argued factors two and four and that factor twelve "may have been argued but would not have been accepted." "Nonetheless, on the record before it," the judge found that "even had that been done by counsel, it would not have changed the outcome." The judge concluded that the "record below does not support" a finding that "had [defendant's] prior attorney . . . argued for these mitigating factors he may have received a lower sentence. . . . The [sentencing c]court could not have legally justified a lowering by a degree of the charges to which [defendant] pled."
Therefore, even if "there was some deficiency in [counsel's] performance," the judge stated that he was "not satisfied that the case was [a]ffected by any such deficient performance." Because defendant failed to present a prima facie case "as to ineffective assistance of counsel that would have undermined the outcome or . . . the reliability of the proceeding[,]" the judge denied defendant's request for an evidentiary hearing.
On appeal, defendant presents the following contentions for our consideration:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT SENTENCING SATISFIED THE PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST AND ...