June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AMANDA DEMBOWSKI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-08-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2012
Before Judges A. A. Rodriguez and Fasciale.
Defendant appeals from a June 21, 2010 order denying her petition for post-conviction relief (PCR). Defendant argues primarily that her plea counsel was ineffective because counsel (1) was not present when defendant later sought to modify her plea agreement; and (2) failed to argue all applicable mitigating factors at sentencing. We affirm.
In August 2005, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in exchange for a State recommendation of a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At her plea hearing, defendant testified that she and co-defendant, Charles Poe, "placed a [plastic] bag over the victim's head until [the victim] was dead, and [then they] removed [the victim's] body from the house and transferred it to [Pennsylvania]." Defendant agreed as part of her plea agreement to provide truthful testimony at Poe's trial. The plea judge indicated that defendant would be sentenced after Poe was tried.
Poe's first trial commenced, but the court declared a mistrial.
The State retried Poe and obtained a conviction.*fn1 Defendant cooperated and testified at both trials.
In January 2007, the judge sentenced defendant in accordance with the plea agreement. Defense counsel argued, however, that the judge should weigh heavily three mitigating factors: N.J.S.A. 2C:44-1b(12) (defendant cooperated and testified twice), N.J.S.A. 2C:44-1b(9) (defendant stated she was remorseful), and N.J.S.A. 2C:44-1b(11) (defendant argued that she suffered from mental health illnesses and alcoholism). He requested that the judge depart from the plea agreement and impose a ten-year sentence subject to NERA. The judge found aggravating factors N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense including whether it was committed in an especially heinous, cruel, or depraved manner), and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). Regarding mitigating factors, the judge noted that defendant "testified on two occasions at two separate trials," and that "[s]he suffers from depression and may suffer from some form of alcohol abuse." He concluded that "[t]he aggravating factors clearly and substantially outweigh[ed] the mitigating factors," and stated:
[The victim] was handcuffed behind her back, pushed on a bed, restrained at her shoulders by [Poe], . . . and restrained from any leg movement by [defendant]. Repeatedly, [defendant and Poe] put plastic bags over the victim's head, the victim biting through the bags in succession. The entire incident took an exceptional amount of time, the victim succumbing after the fourth bag was placed over her head and held so tightly that it produced exceptional internal bleeding in the neck[.]
Defendant appealed from her sentence and argued that the judge erred by not applying all applicable mitigating factors.
In May 2008, after conducting an excessive sentencing oral argument (ESOA) calendar, we reversed, remanded, and directed the judge to consider two additional mitigating factors, N.J.S.A. 2C:44-1b(7) (defendant has no history or prior delinquency or criminal activity) and N.J.S.A. 2C:44-1b(13) (the conduct of a youthful defendant was substantially influenced by another person more mature than defendant). On remand, the court followed our instructions, applied mitigating factor (7), determined that mitigating factor (13) was inapplicable, and imposed the same sentence. In April 2009, after we conducted a second ESOA calendar, we affirmed the resentence and concluded that the "the sentence is not manifestly excessive or unduly punitive."
In August 2009, defendant filed her petition for PCR. Defendant asserted that her plea counsel failed to argue at sentencing that she suffered from an abusive childhood and mental health issues.*fn2 PCR counsel contended, therefore, that "[defendant] seeks to have the sentence . . . set aside and the case set down for a new sentencing." Judge Mitchel E. Ostrer conducted oral argument, issued a twelve-page oral opinion, and denied the petition. Judge Ostrer stated:
[T]he petition fails . . . on the prejudice prong,*fn3 which is, is there a reasonable probability that but for counsel's error, [of being absent when defendant attempted to re-negotiate her plea agreement to reduce her jail term to fewer than fifteen years in prison subject to NERA], the result of the proceeding would have been different[.]
The defendant was obliged to testify. When defendants reach plea agreements that [require] cooperation, they get the benefit of that promise of cooperation upfront. [Defendant] got the benefit of that cooperation upfront. [Poe] could have dropped dead of a heart attack the day after the plea was entered and . . . defendant would still be entitled to a 15-year plea agreement, even though, she would have done nothing in compliance with her promise [to cooperate]. . . .
[H]ad [defendant] not [testified] at the second trial, what would her alternative be? Withdraw the plea? I don't think that would have resulted in a sentence that would have been more favorable for her. . . . The plea agreement says that she was required to cooperate. There is nothing on the face of it that says only one trial. There is no representation of only one trial.
The judge then concluded that defendant's contention that her plea counsel failed to argue the applicable mitigating factors was without merit.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF BASED UPON HER FAILURE TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL; ALTERNATIVELY, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF
B. SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT HER SENTENCING HEARINGS, THE TRIAL COURT ERRED IN DENYING HER PETITION FOR POST CONVICTION RELIEF REQUESTING A RE-SENTENCING.
C. SINCE THE DEFENDANT REPRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO HER SENTENCING, THE TRIAL COURT ERRED IN DENYING THIS ASPECT OF HER PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIAL HEARING TO FULLY ADDRESS THIS CONTENTION.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION REGARDING HER REASONABLE EXPECTATION ARISING OUT OF HER PLEA AGREEMENT PURSUANT TO CONVERSATIONS SHE HAD WITH THE STATE FOLLOWING THE CO-DEFENDANT'S FIRST TRIAL
We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that her arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ostrer in his January 18, 2010 oral opinion. We add the following brief comments.
If defendant believed that a sentence lower than fifteen years in prison subject to NERA was warranted because she testified twice, then she had the opportunity to file a motion to withdraw her plea and argue that she did not contemplate her cooperation would extend to an unanticipated second trial.
However, as Judge Ostrer stated, defendant never contended that she was innocent of the charges. As a result, such a motion would be denied. Seeking to reduce one's sentence by filing a PCR petition is generally improper, see R. 3:22-2(c); State v. Acevedo, 205 N.J. 40, 47 (2011) (contentions unrelated to sentence "legality" not cognizable on PCR), and we conclude that defendant has failed to establish a prima facie case of ineffectiveness of PCR or appellate counsel.