On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1081.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2012
Before Judges Sabatino and Fasciale.
Defendant appeals from an August 27, 2009 order denying his petition for post-conviction relief (PCR). He contends that he received ineffective assistance from his trial and appellate counsel because neither argued, or sufficiently argued, the disparity in sentencing exposure between defendant and his co-defendant, his fiancee at the time of the offense. We affirm.
In 2002, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in which the State agreed to recommend a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State's proofs demonstrated that defendant and his fiancee robbed a victim in the parking lot of a convenience store. At his plea hearing, defendant testified that he watched his fiancee "drag the victim across the parking lot" toward a stolen car in which he was seated. As the victim attempted to prevent the fiancee from taking her pocketbook and getting into the car, defendant brandished a hammer and threateningly told the victim to "[l]et go of the car door." Defendant and the fiancee then drove away.
At the sentencing hearing, defendant moved to vacate his guilty plea. His trial counsel argued that the fifteen-year sentence recommended by the State was "inappropriate" because the fiancee "only received a seven[-]year [sentence subject to NERA], . . . and she was the one that actually committed the robbery." The judge denied defendant's motion and stated that the fiancee's "[criminal] record . . . was less extensive than . . . defendant's[,] and [that defendant] told me that he was the one that brandished a weapon." The judge followed the plea agreement and sentenced defendant to a fifteen-year prison term with eighty-five percent parole ineligibility, pursuant to NERA, concurrent to defendant's conviction in another county for carjacking.
Defendant appealed from his conviction and argued issues solely related to the sentence. Before our excessive sentencing panel, his appellate counsel contended:
In addition, it was mentioned at the sentencing that the [fiancee] apparently received a seven-year term, as opposed to the [fifteen]-year term, and by all accounts it appears that the [fiancee] played at least equal, perhaps more, of a role in the robbery than the defendant did. I know there is mention that the [fiancee] had less priors. I don't know to what extent. But I would say, even with less priors, that, you know, this defendant received more than double the sentence of the [fiancee], and she . . . actually was the one who physically robbed the victim.
We entered an order concluding that "[defendant's] sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." The Supreme Court denied defendant's ensuing petition for certification.*fn1
Defendant then filed his petition for PCR.*fn2 His counsel*fn3 contended that defendant received ineffective assistance of counsel, emphasized the perceived sentence disparity, and stated:
[W]e're not asking for . . . give us ten . . . give us eight. But fifteen, we're asking for a twelve or thirteen . . . . [H]e committed . . . a horrific act . . . . He was part of the conspiracy to do something.
Without an evidentiary hearing, the PCR judge denied the petition and concluded that defendant failed to establish a prima facie case of ineffective ...