On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Payne and Simonelli.
Defendant Joseph Marolda, Sr. appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial counsel. We affirm.
The facts of this matter are set forth in State v. Marolda, 394 N.J. Super. 430 (App. Div.), certif. denied, 192 N.J. 482 (2007), and need not be repeated here in detail. The following facts are pertinent to this appeal.
The police had searched defendant's farm pursuant to search warrants and found twenty-eight marijuana plants growing in the cornfield, 154 marijuana plants growing under the trees in the wooded area of the property, a sifter and scale in the shed, dismantled equipment used for growing marijuana indoors, and a safe containing $48,000. Id. at 439. A grand jury indicted defendant for fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10a(3); first-degree possession of more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:35-5b(10)(a); second-degree conspiracy to possess more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a); and first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35-4. Defendant entered into an unconditional open plea to the first-degree maintaining a CDS production facility charge. Id. at 433-34. The trial judge imposed a fifteen-year term of imprisonment, with sixty months of parole ineligibility, and imposed the appropriate penalties, fees, and assessments. Id. at 434.
Defendant filed a PCR petition, contending that trial counsel rendered
ineffective assistance in several ways. Defendant first claimed that
trial counsel failed to advise him of the harsher Brimage*fn1
consequences of his plea. Defendant argued that had he known
about those consequences, he would have pled guilty earlier and
received the State's original plea offer of nine years with fifty-four
months of parole ineligibility.
Second, trial counsel failed to discuss the advantages and
disadvantages of defendant testifying at the Miranda*fn2
hearing. Defendant argued that he would have testified that
he was never read his Miranda rights, and that this testimony was of
particular importance because he had not signed any Miranda cards.
Third, defendant believed that Jeffrey Sprang, a part-time police officer and defendant's neighbor, was the confidential informant who had notified the police of defendant's activities, which Sprang had discovered by illegally entering onto the farm. Defendant filed a motion to compel disclosure of the confidential informant's identity. Defendant admitted that the court held a hearing on this issue and held that Sprang was not the confidential informant; however, defendant argued in his PCR petition that the confidential informant's identity should have been disclosed, or trial counsel should have requested further inquiry into Sprang's involvement with the informant.
Fourth, trial counsel failed to seek a conditional plea offer that would have preserved defendant's right to appeal the court's Miranda ruling and denial of his motion to suppress, the confidential informant issue, as well as the court's consideration of information outside the record to make additional factual findings in a supplemental opinion rendered after the denial of defendant's motion to suppress.
Lastly, trial counsel was ineffective at sentencing because he failed to argue against aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law." Trial counsel also failed to argue in favor of mitigating factors N.J.S.A. 2C:44-1b(1), "[t]he defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1b(2), "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1b(8), "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense," and N.J.S.A. 2C:44-1b(10), "[t]he defendant is particularly likely to respond affirmatively to probationary treatment."
Following an evidentiary hearing, at which trial counsel, the assistant prosecutor, and defendant testified, Judge DeLury denied the petition in a written decision rendered on January 29, 2010. The judge found that defendant's testimony on the Brimage issue "was entirely incredible," and trial counsel's testimony was "highly credible" and supported by "very detailed billing records" and counsel's "good recollection" of what had occurred. The judge also found that the assistant prosecutor's testimony was "very credible" and supported by her "detailed recollection of the events surrounding . . . defendant's case," including that the State never made a plea offer of nine years with fifty-four months of parole ineligibility; rather, the original plea offer was twelve years with sixty-six months of parole ineligibility. The judge concluded that trial counsel properly explained the Brimage consequences of the plea to defendant and advised defendant of all available plea options.
Judge DeLury found that trial counsel had "multiple conversations" with defendant about the Miranda hearing, and advised defendant of his right to testify, the possible consequences of his testimony, and the possible outcomes. The judge concluded that "[i]n line with the credibility determinations made previously, . . . [d]efendant was informed of his right to testify during the Miranda hearing." Alternatively, the judge concluded that defendant could not show he would have prevailed on the merits because the credible evidence ...