On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 06-06-0760, 06-05-0657, 06-05-0871 and 05-06-0792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Parrillo and Skillman.
Defendant Mike Aburomi appeals from a March 5, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in four Passaic County indictments with a number of offenses ranging in seriousness from first-degree carjacking, N.J.S.A. 2C:15-2a(1), to fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). An accusation also charged him with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). On September 24, 2007, in return for the State's agreement to recommend an aggregate six-year term subject to the eighty-five percent required time served pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to dismiss the remaining counts of the indictments, defendant pled guilty to second-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree theft, N.J.S.A. 2C:20-3; and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. He also pled guilty to violations of probation concerning indictments charging defendant with third-degree receiving stolen property. And on November 2, 2007, defendant pled guilty to the accusation charging him with third-degree CDS possession.
On January 8, 2008, defendant was sentenced on the second-degree burglary offense to a five-year term with eighty-five percent of that sentence to be served before parole eligibility. The remaining sentences were all made to be served concurrently, for an aggregate sentence of five years subject to the NERA parole disqualifier. No appeal was taken, nor did defendant ever file a motion for a reduction of sentence.
On May 7, 2009, defendant filed the instant PCR petition, alleging ineffective assistance of counsel for failing to seek a lesser sentence due to conditions of his pre-guilty plea detention in the Passaic County jail, which he claimed violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to equal protection of the law. In support of this claim, defendant referenced three federal district court cases wherein conditions at the Passaic County jail were found to have warranted a downward departure from federal sentencing guidelines for the federal defendants housed therein. Defendant also alleged counsel was ineffective for failing to provide him with the form necessary to file a direct appeal of his sentence.
The PCR judge rejected both claims, finding the latter to be, at a minimum, "disingenuous," given representations defendant made during the plea colloquy and at sentencing as well as his extensive criminal history of twelve prior indictable convictions. As to the former, the judge noted that the federal prisoners were housed in a different section of the jail than defendant, and that, in any event, defendant failed to make a sufficient factual showing warranting a reduction in sentence. On this score, the PCR judge reasoned:
[Defendant] got the lowest sentence he could get in a second-degree crime. There's no way with his record this Court could have ever found in good conscience that I should go one degree lower and sentence him in a different range on a second-degree burglary charge. There's absolutely with this record no basis in conscience that I could have done that.
Somewhere along the line, I guess, after he was sentenced[,] [defendant] comes to learn about a decision rendered by [a] Federal District Court Judge . . . . It was a matter brought before the Federal Court involving federal detainees held at our Passaic County Jail in a specific section of the jail, not where this defendant was being housed. And the Federal Judge wrote an opinion. And the Judge found as to . . . certain sections of the jail, not where this defendant was housed, that there was serious overcrowding and as a result, the Judge in three separate cases granted a downward variance of a number of months for each defendant. The Federal Court was relying on federal law and federal statutes, a scheme -- a sentencing scheme in the federal system much different than that which is set forth in our Criminal Code as interpreted by our Supreme Court in a number -- in a number of decisions.
But there's nothing in our scheme of sentencing -- aggravating and mitigating factors . . . -- that says judge, you can ignore a plea bargain, you can ignore the sentencing scheme, you could ignore the Criminal Code because you think conditions are such and you ought to reduce the sentence further. There's no such authority in my view that exists.
On appeal, defendant argues ineffective assistance of PCR counsel for failing to demonstrate, both factually and legally, that conditions at the Passaic County jail during defendant's pre-sentence detention warrant a reduction in his sentence. We reject this ...