On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 04-01-0263, 04-07-0264, 04-07-0271, 04-10-0353, 04-08-0292 and 05-06-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Parrillo and Alvarez.
Defendant, Donald Martin, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
On November 14, 2005, defendant pled guilty to various counts in five indictments charging second-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(2); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(5); two counts of third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). Defendant also pled guilty to a one-count indictment charging third-degree bail jumping, N.J.S.A. 2C:29-7. The negotiated plea called for a sentence between ten years, five without parole and seventeen years, eight without parole, allowing defense counsel to argue for a lesser sentence, while the State could argue for a greater sentence. A feature of this plea bargain included a no-show, no-rec provision.
Defendant did not appear on the scheduled date, March 21, 2006. He was eventually sentenced to an aggregate twenty-year term with a ten-year parole disqualifier, which we reduced to a seventeen-year term with an eight-year parole disqualifier after hearing the appeal on our Excessive Sentencing Oral Argument calendar.
Defendant then filed the PCR petition wherein he essentially argued trial and appellate counsel were ineffective for failing to argue mitigating factors 1, 4, 6, 10, 11, 12 and 13. N.J.S.A. 2C:44-1b. After argument on the petition, the PCR judge denied relief, reasoning:
Frankly, I find that Defense argument with regard to Mitigating Factor 1 is just wrong as a matter of law. . . . I don't read the case law to suggest that Mitigating Factor 1 becomes applicable because basically the argument is these were non-violent crimes. They were distribution of controlled dangerous substances and the bail jumping.
And perhaps I might agree on the bail jumping argument. But I do not find that an argument that a distribution of CDS, particularly the number of offenses involved here . . . that the Defendant didn't contemplate nor cause nor threaten serious harm.
I would suggest that there is substantial and serious harm that is felt by the community as a whole and by the recipients of the distributed drugs.
With regards to Factor 6, again, I read Factor 6 differently than the Defense argues. And . . . the argument is that because [defendant] would have been willing to serve community service, that that mitigating factor should be afforded.
Again, I don't look at the facts of this case as Mitigation 6 being applicable.
Again, Mitigating 10, that he is particularly likely to respond affirmatively to ...