September 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT LYNCH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-12-2072.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Defendant Vincent Lynch appeals from a February 11, 2010*fn1 order denying his petition for post-conviction relief (PCR), concluding there was no need for an evidentiary hearing. We affirm.
Defendant pled guilty to armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement and the State agreed to dismiss two weapons offenses. Defendant robbed a Rite-Aid pharmacy cashier at knifepoint, leaving behind a pill container that revealed his fingerprints. Additionally, defendant's fingerprints were found on the cash drawer, because he lifted it to check for larger bills stashed under the drawer. Finally, the video surveillance camera clearly captured his image as he stood by the register waiting for the clerk to open the cash drawer.
As set forth in the plea agreement, the court imposed an eighteen-year custodial sentence subject to the parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, to run concurrently with defendant's sentences under two prior indictments. No appeal was filed.
Defendant's PCR petition asserted ineffective assistance of trial counsel during sentencing. He asserted counsel failed to:
(1) substantiate his request for a more lenient sentence than that set forth in the plea agreement; (2) argue applicable mitigating factors; and (3) request the application of jail credits to which he was entitled. Defendant also maintains his sentencing was manifestly excessive and counsel should have filed an appeal. The PCR judge considered defendant's arguments and rendered a written opinion, addressing each request presented and denying relief. The court noted counsel sought imposition of a fifteen-year sentence, giving the court pages of reasoning and "ample explanation for such a request of sentence and in the process proved his effectiveness." Further, the PCR judge found there was insufficient factual support for the application of asserted mitigating factors, there were no facts presented to explain the alleged jail credit error and the sentence was not excessive, although the issue was inappropriate to present in a PCR petition.
On appeal, defendant argues:
THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND IN DENYING THE PETITION.
THE DEFENDANT WAS ENTITLED TO ADDITIONAL CREDIT FOR TIME SPENT IN CUSTODY.
DEFENDANT'S RIGHT TO ALLOCUTION AT SENTENCING WAS DENIED (NOT RAISED BELOW). POINT FOUR
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL (NOT RAISED BELOW).
We consider these contentions.
"Post-conviction relief is neither a substitute for direct appeal nor an opportunity to relitigate cases already decided on the merits." State v. Preciose, 129 N.J. 451, 459 (1992) (internal citations omitted). In order to demonstrate ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), which was adopted by the Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
To successfully set forth a claim for PCR,
[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
In regard to the first prong of the test, defendant is entitled to the assistance of reasonably competent counsel, and must show counsel's performance was "so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction," as to deny him the constitutional right to legal representation. Fritz, supra, 105 N.J. at 58. With respect to the second prong, "prejudice must be proved; it is not presumed." Id. at 52 (citing Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696). Succinctly, defendant must show "counsel performed below a level of reasonable competence" and "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
As to the necessity of an evidentiary hearing, it is well-settled that a defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462 (citing R. 3:22-1). A trial court is not required to hold an evidentiary hearing, but may do so once defendant presents a prima facie case, satisfying the Strickland/Fritz test, if the evidentiary hearing would aid the court's determination of the merits of the defendant's claims. Id. at 463. "If the 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) (internal citations omitted). We review a denial of an evidentiary hearing under the abuse of discretion standard. Preciose, supra, 129 N.J. at 462; R. 3:22-1.
Cloaking his arguments with the mantel of counsel's ineffectiveness, defendant argues the court failed to articulate its application of aggravating factors; omitted countervailing mitigating factors and denied him the opportunity to allocute during sentencing. Not only are these issues procedurally barred, they are unfounded.
First, in the absence of an appeal, any matter which could have been raised on direct appeal cannot be grounds for post-conviction relief. R. 3:22-2, :22-4. Such a challenge would be considered only if it could not reasonably have been raised before, or if the denial of relief would be unconstitutional.
R. 3:22-4. Here, defendant has made no showing that he could not have challenged his plea or sentence on direct appeal. Further, sentences alleged to be excessive, but which are not illegal, cannot be reviewed by way of PCR and are ordinarily remediable only by way of direct appeal. See State v. Clark, 65 N.J. 426, 436-37 (1974); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971). See also State v. Acevedo, 205 N.J. 40, 47 (2011) (explaining that "contentions regarding consecutive sentences or the absence of reasons for imposition of the consecutive sentences do not relate to the issue of sentence 'legality' and are not cognizable on PCR").
Second, for completeness, we considered defendant's claims for relief and the denial of an evidentiary hearing in light of the record and applicable law. We reject defendant's contentions as without merit. R. 2:11-3(e)(2). We determine he failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing and affirm substantially for the reasons stated by the PCR judge in his February 11, 2010 written opinion. We add these comments.
The record reflects the sentencing negotiations with the State were arduous. At sentencing, written submissions and oral argument were presented to the sentencing judge. Defendant's counsel requested a sentence less than provided for in the plea agreement. On the other hand, the State sought an order requiring the sentence be served consecutive to defendant's two previously imposed sentences for convictions in Essex and Union counties.
The fact that the sentencing judge may not have accepted all of counsel's arguments in mitigation of the sentence does not suggest, by any means, that his representation was unconstitutionally ineffective. Cf. State v. Bey (V), 161 N.J. 233, 314 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). The court reflected on the State's strong evidence, which included a clear video image of his face and fingerprints, and considered defendant's exposure, noting he faced a sentence between twenty years to life imprisonment and he specifically stated he would have imposed consecutive sentences had defendant been convicted after trial. The court also remarked on its review of defendant's past criminal history set forth in the pre-sentence report, which listed seven juvenile adjudications and twelve prior indictable offenses for which defendant served state prison terms.
Pursuant to N.J.S.A. 2C:44-1(a), the court applied aggravating factors: (3) the risk defendant will commit another offense; (6) the extent and seriousness of the defendant's prior criminal record; and (9) the need for deterring the defendant and others from violating the law. While we concede the sentencing judge failed to detail the facts underpinning the applicable aggravating factors (a practice which is expected of trial judges), defendant offers no arguments to suggest the aggravating factors found by the trial judge did not apply. In juxtaposition, after reviewing the entirety of the sentencing record, we determine the record clearly supports these three aggravating factors and it remains unclear what additional arguments counsel should have advocated at sentencing to have persuaded the court otherwise. Understanding the sentencing term was part of the negotiated plea and because we find ample support for the aggravating factors applied, we conclude counsel's efforts were not deficient in providing defendant's legal representation in this matter. Moreover, we discern no prejudice to defendant as a result of any alleged deficiency.
Similarly, the suggestion that the court should have applied mitigating factors pursuant to N.J.S.A. 2C:44-1(b), including: (4) substantial grounds tend to excuse or justify defendant's conduct, though failing to establish a defense; (10) defendant would be "particularly likely to respond affirmatively to probationary treatment"; (11) imprisonment would entail excessive hardship to defendant's dependents; and (12) defendant cooperated with law enforcement authorities, is unfounded.
The PCR judge, who also was the sentencing judge, thoroughly reviewed defendant's arguments for the application of mitigating factors, concluding they were unavailing. We concur with the result for the reasons stated in the court's written opinion. Suffice it to say, the judge sentenced defendant in accordance with the negotiated plea after a balancing of the applicable aggravating and nonexistent mitigating factors and after considering defendant's exposure to a consecutive first-degree sentence, ultimately meting out what he found was "a very good bargain."
Regarding defendant's right to speak prior to the imposition of sentence, see Bey, supra, 161 N.J. at 313, we reject defendant's contention. First, the issue was not raised before the judge in the PCR request. The judge addressed defendant and acknowledged he "would hear from defendant before [he] imposed sentence." The judge then asked, "Would you like to speak?" Based on our reading of the record, defendant likely shook his head, giving a non-verbal response to the court prompting the court's comment: "You don't have to. Okay." The sentencing judge's omission was not stating for the record defendant declined the court's invitation to speak; however, this omission is not prejudicial.
In a separate argument, defendant asserts he was denied his entitlement to jail credits, as provided by Rule 3:21-8. At sentencing, defendant was given no jail credits but was afforded "gap-time" credits of 141 days. Defendant claimed he was entitled to 700 days in custody from his June 11, 2004 arrest to the May 11, 2006 sentencing date. He argues he was indicted on December 21, 2004, not December 21, 2005 as stated in the pre-sentence report. Defendant concludes this error resulted in the imposition of an illegal sentence.
Rule 3:21-8 provides: "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." In contrast, gap-time, addressed at N.J.S.A. 2C:44-5(b)(2), deals with sentences of imprisonment imposed at different times. "'Gap-time' is a subject more difficult to articulate than understand[.]" State v. Franklin, 175 N.J. 456, 461 (2003). The statute provides, in relevant part:
(b) When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served[.] [N.J.S.A. 2C:44-5(b)(2).]
Understanding these provisions, we must examine the series of sentences imposed on defendant for prior convictions, before this sentencing, that may trigger credits.
Before he was sentenced in this matter, defendant was sentenced on two Union County indictments on December 20, 2005. On Indictment No. 04-12-1461, he received 511 days of jail credit for the period of June 8, 2004 to October 31, 2005, and on Indictment No. 04-12-1464, 49 days of gap-time credit for the period November 1, 2005 to December 19, 2005. Also, defendant was sentenced on November 1, 2005 on two Essex County indictments, Nos. 05-01-0151 and 04-10-3283, for which no credits were afforded.
When defendant was charged with this offense, he was already in custody for the Union County offenses. Thus, he was not incarcerated pending trial on this matter and received jail credits of 511 days. Because the record does not include the required information from the conviction, we cannot comment on whether the jail credits calculation on that Union County matter was accurate; however, we are certain defendant was jailed for the prior sentences for which he received credit throughout the period of arrest to conviction in this matter. Accordingly, the period of confinement was credited on his prior sentence and no further jail credits are applicable.
The trial court properly applied gap-time credits, accruing from the date of the Hudson County sentencing, December 20, 2005, to the date of this sentencing, essentially putting defendant "in the same position that [he] would have been 'had the two offenses been tried at the same time.'" Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994) (quoting Model Penal Code §7.06 commentary at 278 (1962)). We find no negligence in counsel's representation.
Lastly, defendant suggests PCR counsel's performance was deficient because he failed to supplement defendant's pro se submission with additional facts to support his claims regarding the application of mitigating factors to persuade the PCR court of the need for an evidentiary hearing. As established above, defendant failed to make a prima facie showing on his ineffective assistance of counsel claims. Therefore, counsel's performance was not deficient and the PCR court properly denied his request for an evidentiary hearing.