February 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD MARTIN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 probationary treatment.
But in this case, again, looking at the Defendant's record, he had one, two -- two juvenile adjudications, one of which he was afforded probation on.
As an adult prior to this offense, he had one, two, three, four, five prior indictable convictions. And he had one, two Municipal Court disorderly persons offenses.
As the Prosecutor noted in this argument and in briefs and in sentencing, these were not the first distribution convictions for the Defendant.
So I find the mitigating factor --again, my reading is a matter of law --would be inapplicable.
And last is Mitigating 11, that the imprisonment of [defendant] would entail excessive hardship to himself and his dependents.
Again, excessive is the key. I believe, as I understand the case law, our courts acknowledge that anyone who goes to prison and has a family, that family will suffer hardship. But this factor goes to excessive hardship.
I find nothing in the Presentence Report which would have been available (indiscernible) to Defense counsel at the time, and even from the supplemental documents that were provided by [defendant], that would suggest that the prior Defense counsel under the Strickland standard acted so outside of the objective standard of reasonableness for competent representation.
So I find that the [Defendant] failed to meet the first burden.
Even if I'm wrong and even if prior Defense counsel at the trial should have argued all of these mitigating factors, I would suggest that the second prong of Strickland cannot be met. And that is that there is a reasonable probability that but for the unprofessional errors, the sentence in this case would have been different.
Looking at [defendant]'s prior record, looking at the Presentence Report as a whole, and the Negotiated Plea, I find that he cannot meet the second burden. And, therefore, I am going to deny his Petition for Post Conviction Relief.
On appeal, defendant raises the following issue:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT]'S PETITION FOR POST CONVICTION RELIEF BECAUSE [DEFENDANT]'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO ARGUE ON HIS BEHALF AT SENTENCING.
We deem this issue without sufficient merit to warrant further discussion, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by the PCR judge in his oral opinion of January 13, 2010. Suffice it to say, trial counsel argued effectively at the August 10, 2006 sentencing the only relevant mitigating factors, supported by the record, of defendant's youth, drug addiction and attempted cooperation. As such, defense counsel helped secure for defendant a sentence below the extended term for which he otherwise qualified as a persistent offender.
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