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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...