May 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAQUAN GRAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2012
Before Judges Fisher, Nugent and Carchman.
Defendant Shaquan Gray appeals from the July 16, 2010 order that denied his petition for post-conviction relief (PCR). Convicted on his non-negotiated guilty plea to two counts of first-degree robbery, defendant was sentenced to concurrent ten-year prison terms, both including an eighty-five percent period of parole ineligibility. Defendant argues that his counsel was ineffective for failing to assert the existence of mitigating factors at defendant's sentencing, correct the trial court's erroneous evaluation of aggravating and mitigating sentencing factors, and argue that defendant should be sentenced as if to a crime graded one degree lower. We reject those arguments and affirm.
On July 30, 2005, the two robbery victims were sitting in the rear yard of a friend's home when three men, one brandishing a gun, exited a car, walked up to the victims, and stole their wallets. The man wielding the gun used it to strike one of the victims in the head. The perpetrators drove away in a car that the victims described to the police. Thereafter, the police stopped the car, its four occupants attempted to flee, and the police pursued and apprehended them. The police found the victims' wallets in the car. Defendant was one of the perpetrators.
A Union County grand jury returned an indictment charging defendant and his three co-defendants with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count eight). In the same indictment, the grand jury charged defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts six and seven).
On May 12, 2006, defendant pleaded guilty to counts one and two, and admitted that he was one of the three perpetrators who took the victims' wallets at gunpoint. Acknowledging that he was facing a maximum forty-year prison term, defendant pleaded guilty with the understanding that he would be sentenced to concurrent ten-year terms of imprisonment with an eighty-five percent period of parole ineligibility applicable to each term.
The court sentenced defendant on July 14, 2006. During the sentencing hearing, in response to the court's question, defense counsel represented that defendant denied striking one of the victims with the gun, even though "discovery indicates that it was [defendant]." Defense counsel also informed the court that defendant believed "that the victim is honestly mistaken." After pointing out that one of the victims had submitted a letter on behalf of defendant, defense counsel stated:
We simply ask the Court's consideration. We reviewed the PSI. No corrections to make to it.
It's a very sad case. I happen to know the family for a long period of time. His family actually [is] related to a lawyer that does a lot of work in the County. He has no prior criminal record whatsoever.
It's a very sad incident, unfortunate, with heavy time. We ask the Court's consideration.
After the prosecutor addressed the court, the court stated:
This case is very troubling, because these defendants who are involved in this crime basically do not have significant criminal records, come from very good families, and it appears that this would be an anomaly in their life, that this will never occur again. I am fairly satisfied with that analysis.
And then one of the advantages of having [defense counsel] as the attorney, is that you will always get the most complete record and every possible fact that a Judge could benefit from to assist their clients, and I thank [defense counsel] again for that. He always does a wonderful job.
And I read these letters, and read them twice, and I read a letter from the victim, and the victim asks for leniency in this particular case. And the victims in the PSI, that's presentence report, say that they don't want any restitution back. That they really did not suffer any economic damage.
The court noted that the sentencing range for a first-degree crime is between ten and twenty years. After recounting that the prosecutor had initially offered to accept defendant's plea in exchange for a thirteen-year term of imprisonment, and that "the [j]udge went down to 10 years, dropped it another three, to the very bottom of the range[,]" the court indicated that defense counsel had asked for a lower term:
Now, defense asks, because of his good past history, and all these glowing recommendations, and that this is an aberration, that the Court go below that.
As I mentioned, I read this PSI four times. I then asked the Prosecutor's Office to confirm for me who was the individual who pistol whipped the victim[.] And the allegation is that it's [defendant].
Next, over the State's objection, the court permitted defendant's uncle, a pastor, to speak on defendant's behalf. The court then imposed the sentence:
The Court in this particular matter is troubled as to what to do, because the Court is satisfied now that the Court has made the proper decision to reduce the prosecutor's recommendation of 13 years down to 10, based upon all these good recommendations, and the fact that he may be rehabilitatable. Yet the range is between 10 to 20 years. It's not between 5 to 20 years.
The Court finds only aggravating factor 9 to apply, and there are no mitigating factors.[*fn1 ] But the Court is satisfied that the proper justice here is to give the minimum [sentence] in the range that has been given.
Therefore, the Judge sentences you to 10 years to New Jersey State's Prison. You must spend at least 85 percent of your term in prison before you may ask for parole.
After you are paroled, you must spend 5 years on parole supervision.
Aggravating factor 9 applies. There are no mitigating factors.
$50 Violent Crime Compensation Board fine, $75 Safe Neighborhood fine. $30 Law Enforcement Officers Fund fine.
Finally, the court dismissed counts three through eight of the indictment.
On September 8, 2006, defendant filed a motion to "Vacate Guilty Plea or for Reconsideration of Sentence . . . ." On November 17, 2006, the court*fn2 denied the motion. The court again explained the rationale for its sentencing decision, and explicitly rejected defendant's request to sentence him to a term appropriate to a crime of one degree lower than the first-degree robbery for which he had been convicted.
Defendant did not file a direct appeal. On December 14, 2009, he filed his PCR petition. The court denied the petition on July 16, 2010. This appeal followed.
Defendant raises the following points for our consideration in this appeal:
POINT I: THE COURT ERRED IN SENTENCING
POINT II: THE COURT ERRED IN FINDING
AGGRAVATING FACTOR NINE.
POINT III: DEFENDANT SHOULD HAVE BEEN
SENTENCED AS FOR A CRIME ONE
DEGREE LOWER. N.J.S.[A.] 2C:44-1[(f)](2).
POINT IV: DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE FROM
Preliminarily, we address the State's argument that defendant's appeal is barred by Rule 3:22-4, which precludes a defendant from raising in a PCR petition "[a]ny ground for relief not raised in the proceedings resulting in the conviction . . . or in any appeal taken in such proceedings . . . ." The State argues that because defendant did not appeal his sentence, and because the grounds for relief he asserts in his PCR petition do not fall within the exceptions contained in Rule 3:22-4, his appeal should be dismissed. The State maintains that defendant "is merely disguising the claims that he failed to appeal as PCR claims."
Although not readily apparent from the point headings in his brief, defendant argues that both of the attorneys who represented him in the trial court were ineffective. During the PCR hearing, in response to the State's argument that his petition was procedurally barred, defendant responded that "what we are really arguing is that prior counsel both, at the time of the original sentence and at the motion for reconsideration, were ineffective." Defendant alleges in Point IV that his attorneys were ineffective for failing to make the arguments set forth in Points I through III. We will therefore address defendant's claims as ineffective-assistance arguments.
The Sixth Amendment to the United States Constitution guarantees to a person accused of crimes the right to effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland, by demonstrating that (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the defense. Id., 466 U.S. at 687, 104. S. Ct. at 2064, 80 L.Ed. 2d at 693. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-part Strickland test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant asserts that trial counsel was ineffective because he did not argue for a lower sentence. Defendant also claims that both attorneys who represented him at the trial level were ineffective because they failed to address the sentencing court's seemingly inconsistent statements concerning mitigating factors, and did not challenge the sentencing court's failure to explain the basis for finding an aggravating factor. Defendant also asserts that at his sentencing his attorney "seemed to concede that defendant was the one who struck one of the victims with a gun[,]" but the record refutes this assertion.
At the sentencing proceeding, defense counsel did not argue that defendant should be sentenced to a term appropriate to a second-degree crime. However, the court noted that the minimum sentence for a first-degree crime was ten years, and that "defense asks, because of his good past history, and all these glowing recommendations, and that this is an aberration, that the Court go below that." That statement renders questionable defendant's claim that his attorney did not request a lower sentence. But even if the attorney did not ask for a lower sentence, and even if the performance of each attorney was deficient for not correcting the sentencing court's analysis of aggravating and mitigating factors, defendant has failed to prove the second Strickland prong, namely, that had counsel performed in the manner posited by defendant, he would have received a lower sentence. The court that denied defendant's PCR petition so found, and we agree.
A court is statutorily authorized, in certain narrowly defined circumstances, to sentence a defendant to a prison term appropriate to a crime of one degree lower than that for which a defendant has been convicted. N.J.S.A. 2C:44-1(f)(2) provides in part:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
During the hearing on defendant's motion for reconsideration of his sentence, while explaining why defendant's sentence was appropriate, the court noted that defendant had a juvenile adjudication for theft and that he also had been convicted in a municipal court of "a public nuisance"; therefore, mitigating factor seven, the absence of a history of prior delinquency or criminal activity, could not be considered.
The court also noted that the crime was a "pistol-whipping armed robbery[,]" and the court could not recall "a sentence where a defendant received the very bottom of the first-degree [range] where someone is actually injured." Further, the court perceived as "one of the problems [it] had," the substantial evidence that defendant was the gun-wielding perpetrator who struck the victim. The court explained that it hadn't penalized defendant "by making it a 6 or a 3,[*fn3 ] hoping that when he's in prison that he'll receive better treatment, because if I would have said [aggravating factors] 3, 6, and 9 outweigh the nonexistent [mitigating factors], he doesn't get the same type of treatment while he's down in prison."
Considering the court's statements explaining why it sentenced defendant to concurrent ten-year terms, and why a lesser sentence would have been inappropriate, it is unlikely that anything counsel could have said or done would have resulted in the sentencing judge finding that mitigating factors substantially outweighed aggravating factors, or that the interest of justice demanded that the court sentence defendant to a prison term appropriate to a second-degree crime. Stated differently, defendant has not demonstrated that he would have received a lesser sentence but for the deficient performance of his attorney. Defendant has failed to make a prima facie showing of the second Strickland prong.