On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-01-0286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2011
Before Judges A.A. Rodriguez and Grall.
Defendant Francisco Verge appeals from the denial of his first petition for post-conviction relief (PCR). The petition alleged ineffective assistance of plea counsel at sentencing, and appellate counsel on direct appeal. We affirm.
In January 2004, pursuant to an agreement with the State, defendant
pleaded guilty to first-degree robbery, N.J.S.A.
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); and
first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1). The State agreed to
recommend concurrent eighteen-year terms, subject to a NERA*fn1
parole disqualifier. Defendant was examined at the Adult
Diagnostic and Treatment Center (ADTC) and was found to be ineligible
for sentencing as a sex offender. The plea judge imposed the sentence
recommended by the State.
Defendant appealed his sentence only. While the appeal was pending, defendant's case was remanded for re-sentencing consistent with State v. Natale, 184 N.J. 458 (2005). After a hearing, the plea judge imposed the same sentence on the defendant. At the resentencing hearing, defendant was represented by a different attorney. Defendant filed an amended notice of appeal. We affirmed the sentence on direct appeal after consideration of arguments presented pursuant to Rule 2:9-11. State v. Verge, No. A-5127-03 (App. Div. August 24, 2006).
Thereafter, defendant moved pro se for a reduction of sentence. A different judge dismissed the motion, without prejudice to defendant's right to file a PCR petition. Defendant did so shortly thereafter. The PCR judge denied the petition without argument or an evidentiary hearing. This appeal follows.
On December 16, 2001, defendant and three accomplices armed with guns forced their way into a home on 26th Street in Camden intending to steal property. There were several people in the home, including an eighteen-year-old woman and an older pregnant woman. Once in the house, defendant and his accomplices coerced the residents into telling them the location of their valuables. When they were unable to find the cache, one of the accomplices told the two women to go upstairs to one of the rooms and take off their clothes. Defendant went upstairs and had non-consensual intercourse with the eighteen-year-old woman. Defendant helped to confine both women in the room while his accomplices had non-consensual intercourse with them. The accomplices had repeated non-consensual intercourse with the eighteen-year-old woman and one of the accomplices had non-consensual intercourse with the pregnant woman. Defendant and his companions left the home after taking valuable items and a car.
Defendant appeals, contending:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) Trial Counsel Failed To Argue For A Lesser Sentence.
B) Trial Counsel Failed To Investigate And Present Mitigating Factors At Sentencing.
C) Trial Counsel Failed To Vigorously Advocate At Sentencing, Especially Concerning The Kidnapping Charge.
D) Trial Counsel Failed To Render Effective Assistance During The Re-sentencing.
The standard for deciding a PCR petition based on ineffective assistance of counsel at trial is well-settled. "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d. 674, 693 (1984). "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970). The New Jersey Supreme Court has adopted the Strickland standard for reviewing claims of ineffective assistance pursuant to the state Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
The Strickland/Fritz standard has two prongs. The first requirement is that defendant show that counsel's performance was deficient by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. There is a "strong presumption that counsel's ...