On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-04-0396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Parrillo and Alvarez.
Defendant Anthony Holmes appeals from the December 18, 2009 denial of his petition for post-conviction relief (PCR). We affirm.
Defendant entered guilty pleas on June 2, 2004, to six counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2), as charged in two indictments and four accusations. He was sentenced on July 23, 2004, pursuant to the negotiated plea agreement he reached with the State on all matters, to six concurrent twenty-year terms of imprisonment subject to eighty-five percent parole ineligibility in accord with the No Early Release Act (NERA).
On June 17, 2008, the excessive sentencing panel heard and denied defendant's appeal of sentence. In affirming the sentence, however, the panel indicated defendant had the right to refile his appeal after the Office of Public Defender received a copy of defendant's plea transcript as, despite the fact it was ordered twice, it had not yet been received. The panel stated that the sentence was neither "manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." Defendant did not pursue any further direct appeal. His PCR application followed.
On appeal of the denial of PCR, defendant contends that he was entitled to an evidentiary hearing as he established the necessary prima facie case of ineffective assistance of counsel. He grounds the assertion on the fact that counsel at sentencing did not argue mitigating factors, specifically, mitigating factor four, that substantial grounds existed tending to excuse or justify defendant's conduct, although not a defense, N.J.S.A. 2C:44-1(b)(4); seven, that defendant had been law-abiding for a substantial period of time, N.J.S.A. 2C:44-1(b)(7); nine, that defendant's character and attitudes established he was unlikely to re-offend, N.J.S.A. 2C:44-1(b)(9); eleven, that excessive hardship would result to his family from his imprisonment, N.J.S.A. 2C:44-1(b)(11); and twelve, that he cooperated with the authorities, N.J.S.A. 2C:44-1(b)(12). We concur with Judge Covert's thoughtful and cogent written decision rejecting these claims, and affirm on appeal for essentially the same reasons, adding only very brief comments.
When defendant was sentenced in 2004, he was thirty-eight years old. He had been adjudicated guilty of juvenile offenses and convicted as an adult of approximately seven indictable convictions, the last, a burglary, committed in 1997. At the sentencing proceeding, defendant's brother spoke on his behalf and the court acknowledged reading numerous letters written in support of defendant. Defendant's attorney spoke at some length regarding defendant's drug addiction, and the circumstance that he had never received drug treatment. The court found only one mitigating factor, that the defendant would make restitution to the victims. See N.J.S.A. 2C:44-1(b)(6).
In order to obtain relief from a conviction based upon ineffective assistance of counsel, a 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 v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)) (internal quotation marks omitted) (emphasis added).
Defendant's ineffective assistance of counsel claim satisfies neither prong of the Strickland test. His trial attorney could not have effectively argued the mitigating factors he now maintains were applicable, as they were not supported in fact or law. For example, if we assume for the sake of argument that defendant's untreated drug addiction contributed to his commission of the armed robberies, it nonetheless fails to establish a legal basis for mitigating factor four. See State v. Ghertler, 114 N.J. 383, 389-90 (1989).
Even if his attorney had urged the court to find the mitigating factors enumerated on appeal, the presentation would have been so lacking in merit that the court's sentencing decision would have been no different. The trial attorney's decision not to argue for mitigating factors which were unsupported by the record or the law was therefore within the range of competent representation.
Accordingly, we agree that defendant did not establish a prima facie case of ineffective assistance of counsel with regard to his sentence. In our view, the motion judge's denial of PCR, without ...