August 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCISCO VERGE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.
"Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This, "second prong is satisfied by a defendant's showing that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 315 (2006) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). To establish a prima facie case of ineffective assistance of counsel, "[t]he error committed must be so serious as to undermine the court's confidence in the . . . result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Courts will not deem counsel's assistance ineffective where a defendant fails to establish both elements of the above test. Strickland, supra, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. However, "[a]s in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. 451, 462-63 (1992). "These standards apply to claims of ineffective assistance at both the trial level and on appeal." State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998) (citing State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987)).
Here, defendant argues that he received ineffective assistance of counsel at trial because "there were several mitigating factors that trial counsel could and should have brought to the attention of the sentencing court." Specifically, defendant argues that plea counsel should have researched and presented evidence to the sentencing judge relevant to three mitigating factors, i.e., N.J.S.A. 2C:44- 1(b)(4), (7), (13). We are not persuaded that defendant has established the second prong of the Strickland/Fritz standard.
Defendant argues that mitigating factor four should apply to his sentence. That factor applies when "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). Defendant alleges that he had a troubled childhood. His parents abandoned him and his physically abusive aunt raised him and held him out of school. The PCR judge rejected this allegation, noting that the report prepared by the ADTC did not contain any such allegation. The judge found that "there was no competent, credible evidence of any substantial grounds that tended to excuse defendant's conduct."
We agree with the PCR judge's assessment of the information in the Presentence report and those asserted in the petition. The ADTC report contains no evidence or information relating to his aunt's alleged physical abuse. Defendant presents no additional relevant evidence. We conclude there was no support for a finding that mitigating factor four applied. Therefore, we do not fault plea counsel for not raising that issue at sentencing.
Defendant also argues that mitigating factor seven should have been argued by plea counsel. That factor applies when "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7). Defendant alleges that he had no prior criminal record. However, defendant was only seventeen-years-old at the time of the offense and had been in the country only three years prior to committing the crime.
In State v. Copling, 326 N.J. Super. 417, 439-40 (App. Div. 1999), we approved the trial court's decision to accord minimal weight to the nineteen-year-old defendant's lack of a criminal record as a mitigating factor because that defendant had not established a history as a law-abiding citizen. The same reasoning applies to defendant in the present case because defendant has not established himself as a law-abiding adult citizen over a reasonable period of time prior to committing the crimes for which he was convicted. Therefore, defendant's lack of prior criminal history should also be accorded minimal weight.
Defendant further argues that factor thirteen applies in this case. That factor applies when "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than the defendant." N.J.S.A. 2C:44-1(b)(13). Defendant alleges that one of his accomplices was six months older, and defendant perceived his younger co-defendants as more mature. The PCR judge rejected this argument. We agree.
Defendant cites no case where factor thirteen was applied to a defendant who was "substantially influenced" by others who were younger or only a few months older than the defendant at the time of the offence. Thus, from our careful review of the record, we conclude that, because two of the mitigating factors did not apply and the third would have been accorded minimal weight, defendant has failed to show that plea counsel was ineffective or that defendant suffered prejudice as a result of plea counsel's performance.
Defendant also contends that plea counsel should have argued the non-existence of aggravating factor N.J.S.A. 2C:44-1(b)(2), because "defendant did not intend the serious harm of kidnapping." This contention is clearly without merit because his actions belie any such lack of knowledge or intent.
Defendant further argues that his resentencing counsel's performance constitutes ineffective assistance of counsel. He relies on the fact that re-sentencing counsel "merely stated, without articulating any rationale or basis, that 'the number [fifteen years] is a more appropriate sentencing in this case.'" In addition, defendant contends that resenting counsel "allowed several significant errors of fact to creep into the [re- sentencing] hearing which could have colored the judge's impression of the appropriate sentence to be applied."
We disagree. From the record we perceive nothing that would establish a prima facie showing of either prong of the Strickland/Fritz standard.
Defendant also contends that:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
A) Appellate Counsel Failed To Challenge The Court's Reliance On Aggravating Factor (2).
B) Appellate Counsel Failed To Challenge The Court's Reliance On Aggravating Factors (3) And (9).
C) Appellate Counsel Prejudiced
Defendant By Misstating The Facts.
D) Appellate Counsel Failed To Raise Key Issues.
Defendant argues that the plea judge inappropriately found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), because he did not set forth the facts supporting such finding. Therefore, because he did not challenge the application of that factor, appellate counsel was ineffective. We disagree.
"The standard of appellate review of a claimed excessive sentence is a 'clear showing of abuse of discretion' by the trial judge." Pressler & Verniero, Current N.J. Court Rules, comment 3.1 on R. 2.10-3 (2011) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)). The Court has "caution[ed] further that it is only in the exceptional case that the trial judge's use of discretion should be reversed." Ibid.
N.J.S.A. 2C:44-1(a) provides in part:
In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:
(2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance. . . .
From our careful review of the record, including the presentence report, we conclude that there was a substantial basis for finding that aggravating factor two applied in this case and no apparent argument available that could dissuade a judge from finding this factor. One of the two sexual assault victims was pregnant and the other was only eighteen-years-old, and one of the victims was assaulted numerous times.
Defendant also argues that appellate counsel was ineffective because he did not challenge the trial judge's application of aggravating factors three and nine. N.J.S.A. 2C:44-1(a)(3), (9). We disagree.
The New Jersey Criminal Code provides that a sentencing judge shall consider the following factors in determining the length of a defendant's sentence: "[t]he risk that the defendant will commit another offense" and "[t]he need for deterring the defendant and others from violating the law." Ibid. In State v. Abdullah, 184 N.J. 497, 506 n.2 (2005), the Supreme Court noted that "[a]ggravating factors (3), (6), and (9), arguably, are inextricably linked to the recidivism exception." "[I]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment." State v. Thomas, 188 N.J. 137, 153 (2006).
From our careful review of the record, including the presentence report, we conclude that there was a strong case for the application of aggravating factors based on risk of recidivism and deterrence in this case. Although defendant initially planned on only committing a robbery, he was willing to engage in the additional crimes of kidnapping and sexual assault when the opportunity was presented. These Multiple crimes involved violence and theft, and they are indicative of defendant's proclivity and willingness to resort to threats and force to satisfy his needs without regard to the interest of others. If there is an argument that counsel could have made, nothing in the record before us suggests it.
Defendant also contends that:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT MUST THEREFORE BE REVERSED.
We are mindful that "trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, 129 N.J. at 462. However, "[i]f the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted) (citing State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)).
Here, defendant did not present a prima facie claim in support of his PCR petition. We therefore reject defendant's argument that he was entitled an evidentiary hearing.
Defendant also contends that:
THE LOWER COURT ERRED IN NOT ENTERTAINING ORAL ARGUMENT ON THE PETITION AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
"Whether oral argument before the post-conviction relief court is necessary and appropriate is currently left to the sound discretion of that court." State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001). The discretion in the decision as to whether oral argument should be granted is guided by considerations such "as the apparent merits and complexity of the issues raised, whether the petition is an initial application, whether argument of counsel will add to the written positions that have been submitted, and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument." Id. at 387. The court in Mayron held that "there should be a significant presumption in favor of oral argument." Ibid.
Here, the issues raised by the defendant were not complex. Defendant did not present a prima facie showing of any of the claims of ineffective assistance of trial or appellate counsel, and the other arguments raised legal, not factual issues.
Defendant also contends that:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
Here, defendant has not established an error or prejudice. Therefore, there can be no cumulative error.