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State of New Jersey v. Ernest Bell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNEST BELL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-09-0937.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2011

Before Judges Parrillo and Grall.

Defendant Ernest Bell appeals from a denial of post-conviction relief, which he alleges is warranted because defense counsel presented no argument at sentencing. Because defendant

did not raise a genuine question of prejudice, we affirm.

Defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and second-degree robbery, N.J.S.A. 2C:15-1. On the date of the crime, June 16, 2004, defendant was sixteen years old. He and his companions, Kyle Walker, Anitwone Cox, defendant's older brother and others, placed an order for delivery of take-out food with a plan to rob the deliveryman when he arrived. Defendant had a gun, which Cox took when the deliveryman drove up. Defendant approached the car but did not threaten the victim. Cox had a BB gun but did not fire it; Walker fired a single fatal shot using defendant's .38 caliber pistol.

Defendant entered his guilty plea pursuant to an agreement with the State. He waived a hearing on transfer of his case from the Family Part to the Law Division and an indictment, and he promised to give truthful testimony for the State if his co-defendants were tried. In return, the State agreed to accept a plea to aggravated manslaughter and second-degree robbery and recommend a twenty-three-year sentence for the homicide and a concurrent seven-year sentence for the robbery, both subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Walker pled guilty to first-degree murder and first-degree robbery, and the State recommended an aggregate sentence of thirty years, with a thirty-year period of parole ineligibility. Cox pled guilty to manslaughter and first-degree robbery, and the State recommended consecutive sentences totaling sixteen years subject to NERA.

The following evidence relevant to defendant's sentence was included in the pre-sentence report. Defendant lived with his father until he was ten and his mother and grandmother from the time he was ten until he was fourteen. He then moved to Virginia with his girlfriend and her parents, where he lived between February and July 2003. In June 2004, he was living in New Jersey with his older brother and a half-brother, not with his mother and grandmother or his girlfriend, who gave birth to their child in June 2004. Defendant was not and had never been employed but he had assisted his girlfriend's father with some electrical work. Defendant admitted to smoking marijuana four times and drinking alcohol twice, but he asserted that his use was "experimental" and he had not used either substance since he was fourteen or fifteen.

Although defendant had no prior convictions, he had been adjudicated delinquent on four separate occasions between June 2000 and January 2001. Those adjudications were based on acts that if committed by an adult would have constituted two aggravated assaults, unlawful possession of a weapon, simple assault and harassment. Defendant had been placed on and found guilty of violating probation. With the exception of the period between February and July 2003 when he was living in Virginia and doing well, defendant did not comply with the conditions of his probation.

Defense counsel presented no argument at the sentencing hearing, but the trial court made detailed findings. Based on defendant's juvenile record and the circumstances of this crime, the court found two aggravating factors - a risk of recidivism and a need to deter defendant and others, N.J.S.A. 2C:44-1a(3),

(9). The judge found three factors in mitigation - defendant's youth and the influence exerted by an older confederate, his amenability to probation and restitution that defendant had agreed to pay, N.J.S.A. 2C:44-1b(6), (10), (13). Balancing those factors and contrasting defendant's contribution to the victim's death with the greater contribution of Walker and the lesser contribution of Cox, the judge concluded that the sentence contemplated by the plea bargain was appropriate because the aggravating factors outweighed the mitigating.

Eighty-five percent of defendant's aggregate twenty-three-year term, is nineteen years, six months and twenty days. His first parole eligibility date is about ten years earlier than Walker's. In contrast, Cox, who had only one juvenile adjudication and played a lesser significant role in the homicide, will be eligible for parole about five years before defendant.

This court considered defendant's direct appeal in accordance with Rule 2:9-11. We remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and ultimately affirmed the sentence, which the judge had not modified on remand. State v. Bell, A-5316-06 (orders dated Nov. 14, 2007 and Nov. 12, 2008). In our oral decision following the Natale remand, we rejected defendant's request to modify his sentence based on his willingness to cooperate with the State. We concluded that "even if perhaps the trial court should have identified the cooperation . . . as a mitigating circumstance," we were satisfied that the court had not abused its discretion.

Defendant filed a timely petition for post-conviction relief and was assigned counsel. His PCR attorney retained an investigator who interviewed friends of defendant and prepared summaries of their statements. None of them had been interviewed by defense counsel prior to defendant's sentencing. The summaries were prepared for the signature of the interviewees, but only one interviewee, Noel Perez, signed the summary and attested to its veracity.

According to Noel, he and defendant grew up together; he knew that defendant took care of his mother and his grandmother when he lived with them. Noel visits defendant in prison and has noticed him changing for the better while there. According to Noel, defendant has become less depressed and negative and more "upbeat" and positive. He now refrains from use of foul language and reads and quotes scripture. Although Noel stated he was willing to speak on defendant's behalf now, Noel admitted that he did not know if he would have been willing to do that when defendant was sentenced.

The investigator's unsigned summaries of the other witnesses' statements disclosed the following. Defendant's girlfriend describes him as a "nice person" who did well when he was going to school and living with her and her family in Virginia. She also recalled him caring for his grandmother and his mother when he was in New Jersey. The maternal grandmother of defendant's child reported that defendant was always "respectful" when he was living in her home and would go to the store for her if she asked. A friend of defendant from middle school reported that he was quiet and involved in school activities and sports before he "got caught up with the wrong people."

We conclude that the trial court properly denied this petition. In order to obtain relief from a sentence due to ineffective assistance of counsel, the defendant must establish deficient performance and resulting prejudice as defined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To meet Strickland's two-pronged standard, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland, supra, 466 U.S. at 689, 694, 104 S. Ct. at 2065, 2068, 80 L. Ed. 2d at 694, 698 (1984)) (emphasis added).

A defendant is entitled to effective representation at sentencing. A claim based on counsel's performance at sentencing, unlike a claim of excessive sentence, is properly raised by way of petition for post-conviction relief especially when it is based on matters outside the record. State v. Hess, 207 N.J. 123, 145 (2011); State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002). A sentence imposed as a result of a plea agreement is entitled to a "presumption of reasonableness." State v. Sainz, 107 N.J. 283, 294 (1987). But a plea bargain does not relieve the trial court of its obligation to sentence in accordance with the Code's guidelines, and the court's assessment of the relative weight of the aggravating and mitigating factors must be supported by competent, credible evidence in the record. State v. Warren, 115 N.J. 433, 447-49 (1989). For that reason, defense counsel still has an important role when there is a plea bargain. Hess, supra, 207 N.J. at 152-53.

The attorney's function at sentencing is to present evidence and argument relevant to the aggravating and mitigating factors and the Code's other sentencing guidelines. Id. at 147-53; Briggs, supra, 349 N.J. Super. at 501-03. On that reasoning, this court has held that a defendant is entitled to re-sentencing if his attorney has been restricted from arguing that the court should impose a sentence lower than the term specified in a plea bargain. Briggs, supra, 349 N.J. Super. at 500-03. And on the same reasoning, the Supreme Court has extended Briggs and held that plea agreements are impermissible if they restrict counsel's opportunity to argue "for a lesser sentence, or to argue against an aggravating factor or for a mitigating factor," or to argue their relative weight. Hess, supra, 207 N.J. at 153. In this case, however, there was no impermissible restriction on counsel's argument; counsel made no argument. Thus, the questions before us are limited to whether defendant established deficient performance and prejudice. Hess, supra, 207 N.J. at 146.

Absent an obvious tactical reason, it is difficult to envision a case in which a defendant sentenced after Briggs could not make a prima facie showing of deficient performance by demonstrating that defense counsel made no argument at sentencing. In this case, defense counsel simply incorporated by reference statements the trial court made in sentencing his client's co-defendants. Since the transcript of the sentencing proceeding we have does not include the court's comments defense counsel referenced, we cannot discern whether counsel made a reasonable tactical decision.

Even if we assume that counsel's performance was deficient, we cannot conclude that defendant is entitled to relief. As discussed above, Strickland does not permit relief for deficient performance unless the defendant also demonstrates prejudice, and defendant has not done that.

Despite counsel's silence, the trial court found three mitigating factors that are supported by the record - a mitigating factor based on defendant's youth, another based on his brief period of successful participation in probation while in Virginia and another based on his willingness to make restitution. The court also recognized that defendant did not have any prior convictions, and the court's findings of risk of recidivism and need to deter were based only on his juvenile record and the circumstances of this crime, which together clearly supported the court's assessment of risk of recidivism and the need for deterrence. In addition, the trial court considered facts pertinent to disparity in sentencing, and determined that Walker's and Cox's respective contributions to the deliveryman's death justified the differences in their sentences.

In short, with respect to the mitigating and aggravating factors the court found and balanced after his own diligent and careful consideration of the record, we cannot conclude that any argument on the same facts and factors made by defense counsel probably would have led the court to a different conclusion.

On appeal, defendant presents arguments relevant to additional mitigating factors that defense counsel could have made on the record as it stood at the time of sentencing. But, with one exception, those arguments have no support in the record. Defendant admitted that Walker used his gun to shoot the deliveryman, and, contrary to appellate counsel's view, defense counsel had no basis for arguing that defendant did not contemplate serious harm. Similarly, appellate counsel's claim that defense counsel could have fashioned an argument for mitigation by focusing on defendant's substance abuse conflicts with the record, which indicates nothing but experimental use of substances that defendant had abandoned by the time he was fifteen. Moreover, defense counsel could not reasonably or persuasively argue that defendant had no history of violence; he had two prior juvenile adjudications for conduct amounting to aggravated assault, and one of the incidents involved a knife.

The only mitigating factor not found by the court that is supported by the record available at sentencing is the factor based on a defendant's willingness to cooperate with the State, N.J.S.A. 2C:44-1b(12). On direct appeal we concluded that the court could have found that mitigating factor, but we determined that the court did not abuse its discretion in not doing so. After all, cooperation was part of defendant's plea agreement, and, given the presumption of reasonableness that attaches to a plea bargained sentence, it is not reasonably probable that the trial court would have been persuaded that a mitigation beyond what was already reflected in the twenty-three-year term for aggravated manslaughter was appropriate. The factual basis defendant provided at the time of his guilty plea established the elements of felony murder and first-degree robbery.

Defendant also argues that the evidence submitted on his petition for PCR demonstrates that he was prejudiced by defense counsel's failure to obtain favorable information about his character, attitude and family life. He contends that the information PCR counsel's investigator obtained probably would have led the trial court to conclude he was not likely to re-offend and that imprisonment would entail excessive hardship for his family, N.J.S.A. 2C:44-1b(9), (11).

We disagree. Only the investigator's summary of Noel's statement bore a signature of the witness attesting to its veracity, and Noel was not certain that he would have testified if asked at the time defendant was sentenced. Moreover, vague reports about defendant helping his mother and grandmother when he lived with them are not indicative of character and attitude that made his commission of another crime unlikely, N.J.S.A. 2C:44-1b(9). Defendant's juvenile adjudications were for acts committed during the period that he cared for them. There is absolutely nothing in this record that indicates defendant's imprisonment would be a hardship for any family member, N.J.S.A. 2C:44-1(11); he was unemployed and living with his brother and half-brother, not his mother, grandmother or the mother of his child when he committed this crime.

For all of the foregoing reasons, we reject defendant's claim that the trial court erred in denying relief or an evidentiary hearing. Neither is required unless a defendant has presented a prima facie case of deficient performance and prejudice. State v. Preciose, 129 N.J. 451, 463 (1992).

Affirmed.

20111005

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