On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-08-2776.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant Dajuan Calloway appeals from the Law Division's February 27, 2009 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel, and request for an evidentiary hearing. We affirm.
The record reflects that defendant was charged pursuant to Camden County Indictment Number 03-08-2776 with four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts one through four); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (count six); and third-degree unlawful possession of a rifle or shotgun, N.J.S.A. 2C:39-5c(1) (count seven).
On March 2, 2004, defendant and the State entered into a negotiated plea agreement whereby defendant agreed to plead guilty to one count of second-degree aggravated assault and third-degree possession of a sawed-off shotgun in exchange for dismissal of the other charges and the prosecutor's recommendation of an aggregate eight-year custodial sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant signed and initialed the appropriate plea forms. He acknowledged on the record before Judge Thomas A. Brown, Jr. that his attorney explained the forms to him and he understood all of the terms and ramifications of his plea. Defendant further acknowledged that he was waiving certain constitutional rights and was knowingly and voluntarily choosing to plead guilty.
Defendant then provided a factual basis, testifying that he bought a sawed-off shotgun and on the evening in question, fired it randomly into the air at least three times, and the pellets struck Roberto Rosario, causing him to be hospitalized with serious injuries. The judge was satisfied the plea was entered voluntarily and defendant had provided an adequate factual basis for the charges to which he pled.
On April 30, 2004, Judge Brown sentenced defendant in accordance with the terms of the negotiated plea agreement to an eight-year custodial term subject to NERA on count four, concurrent to a five-year term on count six, with the balance of the counts dismissed. The court found aggravating factors three and nine, N.J.S.A. 2C:44-1a(3), (9), and no mitigating factors, N.J.S.A. 2C:44-1b. No direct appeal was filed.
In February 2008, defendant moved for PCR relief asserting in a pro se petition and through counsel ineffective assistance of trial counsel in: (1) not filing a motion to suppress the initial arrest warrant; (2) failing to check his state of mind;
(3) failing to consolidate all of his cases into one sentence; and (4) failing to investigate and raise mitigating factors at sentencing.
Following oral argument on February 27, 2009, Judge Brown denied defendant's petition, finding it was procedurally barred as it was essentially an excessive sentencing challenge that should have been raised on direct appeal. R. 3:22-3. Nevertheless, the court was satisfied defendant's claims had no substantive merit and that defendant failed to set forth a prima facie case establishing ineffective assistance of counsel warranting an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
Specifically, the court found defendant failed to make a prima facie case that counsel provided insufficient representation in failing to argue mitigating factors two, four, six, eight, nine and eleven, as he provided no affidavits or certifications to support either substandard representation or prejudice. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (holding that a defendant "must offer something more than a bare allegation" to support a PCR application), certif. denied, 162 N.J. 199 (1999). The court also did not find persuasive defendant's argument that his intoxication would have warranted a finding of mitigating factors two, four and eight. Judge Brown noted that he already considered defendant's intoxication as it was included in the pre-sentence report but, nonetheless, intoxication may not mitigate an offense. State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). In addition, defendant's subsequent substance abuse counseling could not have been considered a mitigating factor at the time of sentencing.
With regard to mitigating factor eleven, Judge Brown noted that although imprisonment is a hardship on any individual, defendant had failed to show that his imprisonment constituted an excessive hardship on his two daughters as he was not their primary caregiver. Moreover, although defendant presented a certification from his mother, it was vague and did not disclose anything that was not considered by the court from the presentence investigation report. Thus the court found defendant failed to present a prima facie case of ...