August 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE SERRANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-06-1083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Graves and Yannotti.
Defendant Jose Serrano appeals from an order entered on December 3, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Indictment No. 06-06-1083 with the armed robbery of Yisset Vargas, N.J.S.A. 2C:15-1 (count one); the burglary of Lucky Line Check Cashing, N.J.S.A. 2C:18-2 (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); the armed robbery of Damaris Figueroa, N.J.S.A. 2C:15-1 (count five); the burglary of Fulton Check Cashing, N.J.S.A. 2C:18-2 (count six); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight); the attempt to cause bodily injury to Damaris Figueroa with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count nine); and making terroristic threats, N.J.S.A. 2C:12-3(a) (count ten).
Defendant pled guilty to counts one and five of the indictment. The plea agreement provided that the prosecutor would recommend that the court sentence defendant to ten years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement also provided for dismissal of the other counts in the indictment. In addition, the plea agreement stated that the sentence imposed would be concurrent to those imposed as a result of defendant's plea to Accusation No. 843-05, in which he was charged with theft by unlawful taking.
Defendant was sentenced on January 5, 2007. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense; nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law); and eleven, N.J.S.A. 2C:44-1(a)(11) (imposition of fine, penalty or order of restitution rather than term of imprisonment would be perceived as merely cost of doing business). The court found no mitigating factors. Defendant was sentenced to two concurrent ten-year terms of incarceration, subject to NERA.
Defendant appealed from the judgment of conviction entered on January 5, 2007, and the matter was heard on our excessive sentencing calendar. Defendant's sentence was affirmed. State v. Serrano, No. A-3659-06 (July 25, 2007). The Supreme Court denied defendant's petition for certification. State v. Serrano, 193 N.J. 222 (2007).
Thereafter, defendant filed a petition for PCR in the Law Division. Defendant alleged that he had been denied the effective assistance of counsel because his trial attorney failed to seek findings by the sentencing judge on certain mitigating factors. The court appointed PCR counsel, who filed an amended PCR petition on October 2, 2009, which alleged that (1) the trial court erred by finding aggravating factors three, nine and eleven; (2) the court failed to consider four mitigating factors; (3) the court should have sentenced defendant as a second-degree offender; and (4) defendant was denied the effective assistance of trial counsel.
The PCR court considered the petition on December 3, 2009, and after hearing the arguments of counsel, placed an oral decision on the record. The court found that defendant's sentence had been affirmed on appeal and, therefore, all claims addressed to the sentence were procedurally barred. The court additionally found that defendant had not been denied the effective assistance of counsel. The court noted that the record supported the trial court's findings of aggravating factors three and nine but aggravating factor eleven did not apply. The court also stated that there was no basis for findings of any mitigating factor.
The court said that the record did not support a finding of mitigating factor one, N.J.S.A. 2C:44-1(b)(1), defendant's conduct did not cause or threaten serious harm. The court pointed out defendant had, in fact, threatened serious harm because he used a knife in the commission of the robberies. The court also stated that defendant's "purported" drug addiction did not warrant a finding of mitigating factor four, N.J.S.A. 2C:44-1(b)(4), substantial grounds tending to excuse or justify defendant's conduct.
In addition, the court stated that the record did not support a finding of mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), the defendant's character and attitude indicate that he is unlikely to commit another offense. The court noted that defendant had indicated a willingness to end his use of drugs, and he had been cooperative and positive in his pre-sentence interview. The court found, however, this did not establish he is unlikely to commit another offense.
The court also addressed defendant's claim regarding mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), willingness of defendant to cooperate with law enforcement authorities. The court stated that this factor was inapplicable because, although defendant had been cooperative with the probation division, he did not lend law enforcement any assistance that would lead to the apprehension or prosecution of other persons or otherwise help the community "in some fashion to rid itself" of persons who violate the law.
The court entered an order dated December 3, 2009, denying defendant's petition. Defendant appeals and raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
We are satisfied from our review of the record that these arguments are without merit.
Rule 3:22-5 provides in pertinent part that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule[.]" In his direct appeal, defendant argued that his sentence was excessive because the sentencing judge erred in its findings of aggravating and mitigating factors. We rejected those arguments and determined that the sentence was not excessive. Because these issues were conclusively adjudicated in defendant's direct appeal, he was barred from asserting them as a basis for PCR.
Defendant's claim that he was denied the effective assistance of counsel was not previously adjudicated and therefore was not barred by Rule 3:22-5. However, as the PCR court correctly determined, this claim is entirely without merit. Ineffective-assistance-of-counsel claims are considered under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
The Strickland test first requires a defendant to show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, the defendant must show that his attorney's "deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 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.
Defendant argues that his trial counsel was deficient because he allegedly did not "properly articulate" the aggravating and mitigating factors applicable to his sentencing. He contends that had trial counsel "properly" urged the sentencing judge to find the "appropriate" mitigating factors, it might well have tipped the balance in favor of the mitigating factors, thereby altering the sentencing decision.
We disagree with these arguments substantially for the reasons stated by the PCR court in its oral decision of December 3, 2009. The PCR court recognized that, under State v. Dalziel 182 N.J. 494 (2005), the sentencing judge's finding of the "cost of business" factor was erroneous. Even so, the court pointed out that the record supported the other aggravating factors found by the sentencing judge and did not support the findings of any mitigating factors. The record shows that, even without aggravating factor eleven, a different sentence would not have been imposed. Thus, defendant's claim that he was denied the effective assistance of trial counsel fails.
Defendant also argues that he was denied the effective assistance of PCR counsel. Defendant contends that PCR counsel was deficient because counsel advanced an excessive sentence argument but "effectively ignored or downplayed" his ineffective-assistance-of-counsel claim. We disagree. Counsel did not downplay or ignore the claim. Moreover, as we have determined, the claim was meritless.
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