June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MANGAN AND JURISHA BOONE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-1208.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 20, 2012
Before Judges A. A. Rodriguez and Reisner.
In these two appeals, which we have consolidated for purposes of this opinion, defendants Anthony Mangan and Jurisha Boone appeal, respectively, from trial court orders dated June 14, 2010 and June 23, 2010, denying each defendant's petition for post-conviction relief (PCR). We affirm.
Both defendants were arrested and charged with the armed kidnapping,
rape and robbery of victims in two separate incidents, one in East
Orange and the other in Glen Ridge. Both incidents involved sadistic
abuse of the victims, including, in one incident, requiring the rape
victim's male companion to watch as she was raped and then forcing him
to perform sexual acts with her while the assailants watched. In the
other incident, the two female victims were forced to perform sexual
acts on each other as well as on defendants. In both incidents, the
victims were forced to flee, naked, from the scene.*fn1
Against that background, we consider each defendant's
appellate contentions separately, beginning with Mangan's appeal.
Following a very thorough plea colloquy conducted by Judge Richard C. Camp, Mangan pled guilty on December 13, 2002 to the following crimes: two counts of second-degree conspiracy, N.J.S.A. 2C:5-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of first-degree kidnapping, N.J.S.A. 2C:13-1b; and three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4), in return for a promised maximum sentence of thirty-five years in prison subject to the No Early Release Act (NERA), N.J.S.A 2C:43-7.2. During the plea hearing, defendant admitted his own guilt and implicated his co-defendant Boone.
An evaluation at the Adult Diagnostic and Treatment Center (ADTC) found that Mangan was not a repetitive and compulsive sex offender, and thus he received an ordinary State prison term. On May 3, 2003, Mangan was initially sentenced to an aggregate term of thirty-two years subject to NERA, but on September 21, 2005, we remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). On November 4, 2005, Judge John C. Kennedy reconsidered and imposed the same sentence. On defendant's direct appeal on an Excessive Sentence Oral Argument (ESOA) calendar, we affirmed the 2005 sentence, rejecting his claim that the thirty-two year term was unfairly disproportionate to the thirty-year term imposed on co-defendant Boone.
Mangan next filed a PCR petition, asserting that the attorney who represented him at the 2005 re-sentencing did not adequately present mitigating factors to Judge Kennedy. In particular, he contended that his limited intelligence and limited educational background were not presented to the court. However, he emphasized that he only sought a reconsideration and reduction in his sentence and specifically eschewed any desire to withdraw his guilty plea.
In a thorough oral opinion, placed on the record on June 14, 2010, Judge Rachel N. Davidson rejected defendant's PCR contentions. She considered that defendant was charged in a forty-four count indictment and, if convicted on all counts, faced "numerous lifetime sentences." She also considered that a psychological examination performed prior to the plea agreement revealed that defendant was feigning mental illness and that, due to his lack of cooperation on the tests, his intelligence test results were also unreliable. She further noted that defense counsel had presented the sentencing court with information about defendant's educational limitations, which the sentencing judge acknowledged. She found no evidence that defense counsel was ineffective, applying the standards set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
Judge Davidson further found that defendant presented no legally competent evidence demonstrating his alleged low level of intelligence, and she quoted a report from his ADTC evaluation that "'his actions in the present offense were not influenced by mental deficiency.'" The judge also found that information about his intelligence level, even if considered, would not have affected the length of his sentence. Accordingly, she entered an order on June 14, 2010 denying Mangan's PCR petition.
On this appeal, Mangan raises the following three points for our consideration:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A RESENTENCING HEARING (IN WHICH THE AGGREGATE CUSTODIAL SENTENCE CANNOT BE INCREASED) BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR SENTENCING HEARING IN WHICH ALL APPLICABLE MITIGATING FACTORS ARE CONSIDERED, AND ALL INAPPLICABLE AGGRAVATING FACTORS REJECTED, WAS VIOLATED.
POINT II: SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Arguably, they are also barred by Rules 3:22-4 and -5. However, Judge Davidson considered the merits of defendant's PCR petition and so have we. We affirm substantially for the reasons stated in Judge Davidson's thorough oral opinion. We add the following comments.
Defendant argues that the sentencing court should have considered the abuse he suffered during his childhood, and his alleged low intelligence level, under mitigating factor four (substantial grounds tending to excuse conduct), N.J.S.A. 2C:44-1b(4); that the sentencing court double-counted as aggravating factors the same elements that made the offenses first-degree crimes, see N.J.S.A. 2C:44-1a(1); and Judge Davidson unfairly considered defendant's admission of his guilt in denying his PCR petition. He further contends that his attorney was ineffective in failing to bring these arguments to the attention of the sentencing court, and the PCR court should have held an evidentiary hearing on his petition.
Not only are these arguments all without merit, but in light of the appalling and numerous crimes involved in this case, neither considering the added mitigating factors nor disregarding the additional aggravating factors would have resulted in the imposition of a shorter sentence. Accordingly, we affirm the June 14, 2010 order denying Mangan's PCR petition.
We next address Boone's appeal. On January 10, 2003, Boone pled guilty before Judge Camp to the same offenses as Mangan: two counts of second-degree conspiracy; three counts of first-degree robbery; three counts of first-degree kidnapping; and three counts of first-degree aggravated sexual assault. His plea agreement called for the prosecutor to recommend a sentence of thirty-five years subject to NERA, but Judge Camp indicated during the plea colloquy that he would sentence defendant to thirty years subject to NERA.
On May 2, 2003, Judge Camp sentenced Boone to a thirty year NERA term. He noted that the ADTC report indicated that Boone was a repetitive and compulsive sex offender and that Boone would therefore serve at least the last five years of his sentence at the ADTC facility for sex offenders. The court acknowledged that defendant was "willing to participate in the sex offender treatment." Before the defendant was sentenced, his attorney vigorously argued mitigating factors, including defendant's lack of a prior record, his difficult childhood, and the fact that he was under the influence of drugs at the time of the crimes. Defendant acknowledged his crimes, apologized to the victims, and asked the court for leniency.
After crediting defendant's sincere remorse, his lack of a prior record, and his drug use, the judge also considered the nature and circumstances of the offenses, the risk of re-offense, based in part on defendant having committed multiple offenses on different dates, and the need to deter. Finding that the aggravating factors outweighed the mitigating factors, he sentenced defendant in accordance with the plea agreement, to thirty years subject to NERA. Defendant did not file a direct appeal.
More than five years after he was sentenced, defendant filed a PCR petition on October 24, 2008.*fn2 In his PCR petition, defendant asserted that his trial attorney gave him "bad advice" by advising him to plead guilty without "going over discovery" and informing defendant that "the DNA evidence did not match me and that it actually belonged to [someone] else." In a supplemental certification, defendant also asserted that the police beat him and coerced him into confessing to the crimes. However, the certification did not state that Boone brought this alleged abuse to the attention of his trial attorney. In response, the prosecutor argued that not only did Mangan implicate Boone in the crimes, but one of the victims identified Boone as being one of the perpetrators, and at no time during the plea or sentencing hearings did Boone claim that his confession was coerced or that he had not had an opportunity to review the discovery.
In a lengthy oral opinion placed on the record on June 23, 2010, Judge Davidson considered the very favorable plea agreement that defendant's counsel was able negotiate over the course of twenty-three plea negotiation sessions. She also found that defendant Boone's PCR submissions did not establish a prima facie case of ineffective assistance of counsel under the standards set forth in Strickland, supra, State v. Fritz, 105 N.J. 42, 58 (1987), and State v. DeFrisco, 137 N.J. 434, 456-57 (1994). Therefore, the PCR did not warrant an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 459 (1992).
The judge found that defendant's first PCR certification failed to even mention any alleged beatings or coercion by the police. She noted that in Boone's second certification nowhere . . . does he allege that he ever advised his attorney that his confession was coerced or any discussion as to what he did discuss with his attorney regarding strategy. He does not certify to the reason he pled guilty and did not go to trial.
Most notably, nowhere does the defendant state that the admissibility of the confession caused him to plead guilty. . Unless Mr. Boone informed his attorney of the Bloomfield incident and that his confession was coerced, there was no basis for a suppression hearing on the defendant's confession, and the defendant's attorney's conduct was reasonable.
The judge next considered and rejected defendant's arguments concerning the DNA evidence. First, she noted that defendant never stated that he would not have pled guilty had he known about the DNA test results. Moreover, she considered all of the other evidence of his guilt -- including the confession, his co-defendant's willingness to implicate him, the victim's identification of Boone, and the fact that when arrested he was found to be in possession of the victim's ATM card and a knife the victim had identified as being the one used in the attack on her. She also considered the favorable terms of the plea agreement, in light of defendant's sentencing exposure if convicted at trial. All of that led the judge to conclude that defendant had not satisfied the second Strickland prong by showing that, but for counsel's alleged ineffective assistance, he "would not have pled guilty."
On this appeal, Boone raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PETITION FOR POST-CONVICTION RELIEF, THE TRIAL COURT ERRED IN DENYING THE PETITION WITHOUT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.
Having reviewed the record, we find that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2), and we affirm substantially for the reasons stated in Judge Davidson's comprehensive oral opinion. We add the following comment.
We agree with Judge Davidson that defendant's PCR petition did not present a prima facie case of ineffective assistance of counsel. Even viewed in the most favorable light, defendant's PCR submissions failed to establish a reasonable probability that, but for his attorney's alleged errors, he would not have pled guilty and would instead have insisted on going to trial.
State v. Nunez-Valdez, 200 N.J. 129, 139 (2009). We affirm the June 23, 2010 order denying Boone's PCR petition.