On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-09-0937.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...