On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Nugent and Maven.
Defendant Desmond Walker appeals from the March 12, 2010 Law Division order denying his petition for post-conviction relief (PCR). We conclude the trial judge correctly determined the following: that (1) defendant is not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel; and (2) defendant's proffered mitigating factors were without merit and would not have resulted in a lesser sentence had counsel raised those factors.
Defendant entered a guilty plea to the charge of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2) (count four) and to the charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count fourteen), pursuant to a plea agreement. Under the terms of the agreement, the State agreed to recommend a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c, on count four, and a four-year prison term with eighteen months of parole ineligibility on count fourteen, the sentences to run concurrent. The State also agreed to dismiss the other twelve counts of the indictment.
Before sentencing, the State moved to amend the plea agreement to allow defendant to be sentenced to a reduced term of twelve years on count four.*fn1 The sentencing judge found aggravating factors three and nine*fn2 to apply, as well as mitigating factor twelve, and found that the aggravating factors outweighed the mitigating factors. After finding the amended plea agreement to be fair, the judge sentenced defendant in accordance with the amended plea agreement. Defendant was sentenced to a concurrent term of four years for a probation violation. Defendant did not file a direct appeal.
Defendant subsequently filed a PCR petition, which was heard on January 15, 2010 before Judge Louise D. Donaldson, the same judge who accepted defendant's plea. Defendant claimed his counsel was ineffective for failing to investigate and raise the following mitigating factors contained in N.J.S.A. 2C:44-1a:
(3) defendant acted under a strong provocation; (4) there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;
(5) the victim of the defendant's conduct induced or facilitated its commission; (8) the defendant's conduct was the result of circumstances unlikely to recur;
(9) the character and attitude of the defendant indicate that he is unlikely to commit another offense; and
(11) the imprisonment of the defendant would entail excessive hardship to himself or his dependents.
In a comprehensive written opinion denying the petition, Judge Donaldson found that defendant failed to establish a prima facie case in support of his post-conviction petition of ineffective assistance of counsel ...