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State of New Jersey v. Frank M. Delvecchio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 27, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK M. DELVECCHIO, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 01-12-0443 and 01-12-0444.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2012

Before Judges Graves and Yannotti.

Defendant Frank M. DelVecchio, Jr., appeals from an order entered by the Law Division on July 15, 2009, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in Sussex County Indictment No. 01-12-0443, with first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). He was also charged in Sussex County Indictment No. 01-12-0444, with three counts of third-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); and three counts of fourth-degree criminal mischief, N.J.S.A. 2C:17-3.

Defendant pled guilty to first-degree robbery, as charged in Indictment No. 01-12-0443. He also pled guilty to three counts of third-degree burglary and three counts of third-degree theft by unlawful taking, as charged in Indictment No. 01-12-0444. The plea agreement stated that the prosecution would remain silent on the issue of concurrent/consecutive sentences as to all charges in the Sussex County charges, but reserved the right to seek imposition of sentences consecutive to the sentences that defendant was then serving arising from charges in another county. The prosecution did not recommend any particular sentence at the sentencing, but argued that the Sussex County sentences should be consecutive to those imposed on charges in other counties.

For the robbery, the court sentenced defendant to an aggregate term of fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served consecutive to the sentence that defendant was then serving. The court also sentenced defendant to four years of incarceration, with a two-year period of parole ineligibility, on one of the burglary counts, to be served consecutively to the sentence imposed for the robbery. Concurrent sentences were imposed for the other burglaries and thefts.

Defendant challenged his sentences by filing a notice of appeal from the judgment of conviction dated November 29, 2004, and the case was heard on our excessive sentencing calendar. We affirmed the sentences imposed. State v. DelVecchio, No. A-1198-05 (App. Div. July 25, 2007).

On November 8, 2007, defendant filed a pro se PCR petition, in which he alleged that he had been denied the effective assistance of counsel. Among other things, he alleged that his attorney, Pierce Butler (Butler), had advised him that he would receive concurrent sentences, and would receive no more than a twelve-year sentence in state prison.

On July 8, 2009, the PCR court conducted an evidentiary hearing on defendant's petition, at which defendant and Butler testified. Defendant stated that the plea agreement "never gave an exact amount of years" to which he would be sentenced but Butler told him he "was going to be looking at around [twelve] years." Defendant said that Butler told him "everything was going to be r[un] concurrent."

Butler testified, however, he never told defendant his actual exposure was only for concurrent sentencing. He also said that he did not tell defendant he was only going to receive a sentence of between twelve and fifteen years. Butler additionally stated he reviewed the plea agreement form with defendant, and defendant indicated he understood the plea form as written.

After hearing the testimony, the PCR court placed its decision on the record. The court found that Butler's testimony was credible, while there was an "absence of evidence" to support defendant's testimony. The court noted that the transcript of the plea hearing indicated that defendant knew what the plea agreement was and that "[t]here were no promises made by Mr. Butler[.]"

The court additionally stated that the colloquy between the court and defendant at the plea hearing and Butler's testimony indicated that Butler never made any promises to defendant about the number of years defendant would be sentenced to serve, or whether the court would order that the sentences would run concurrently or consecutively.

The court concluded that defendant failed to carry his burden of showing that he had been denied the effective assistance of counsel. The court entered an order dated July 15, 2009, denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL. (Raised Below).

A. Plea counsel misinformed defendant regarding the penal consequences of his plea. (Raised below).

B. Plea counsel permitted defendant to plead guilty to accomplice liability for armed robbery without a factual basis to meet the essential culpability requirement for the offense. (Not raised below).

C. Defendant's claim is not procedurally barred by R. 3:22 (Raised below).

D. Conclusion

POINT II

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE AND PCR COUNSEL.

A. Appellate and PCR [c]counsel failed to challenge defendant's plea.

B. Appellate and PCR counsel were ineffective for not seeking resentencing pursuant to State v. Natale[, 184 N.J. 458 (2005)].

POINT III

THE FACTUAL BASIS GIVEN BY DEFENDANT WAS INADEQUATE TO MEET THE ESSENTIAL ELEMENTS OF THE OFFENSE; ACCEPTANCE OF THE PLEA BY THE COURT WAS PLAINLY ERRONEOUS AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. R. 10-2. (Not Raised Below).

POINT IV

DEFENDANT IS ENTITLED TO VACATE HIS PLEA DUE TO PROSECUTORIAL MISCONDUCT. (Not Raised Below).

We have carefully considered defendant's arguments in light of the record and conclude that the arguments are without merit. We accordingly affirm the order denying defendant's PCR petition substantially for the reasons stated by the PCR court in the decision placed on the record on July 8, 2009. We add the following comments.

The court considers a defendant's claim that he was denied the effective assistance of counsel under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this test for evaluating ineffective-assistance-of-counsel claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Here, defendant alleged that his attorney misinformed him concerning the penal consequences of his plea. He alleged that his attorney assured him that he would only receive a sentence of twelve to fifteen years, and the sentences would be concurrent. The PCR court found no merit in this claim, and the record supports the court's determination.

As noted previously, Butler testified at the PCR hearing that he never made any promises to defendant concerning the length of the sentences or whether they would be concurrent or consecutive. The PCR court found that Butler's testimony was credible and defendant's testimony was not.

The court's credibility findings are supported by the plea agreement, which included no such assurances. Furthermore, the plea agreement indicated that the State would remain silent as to whether the sentences imposed as a result of the plea would be consecutive or concurrent, but reserved the right to argue that the sentences would run consecutively to the sentence defendant was then serving. The plea agreement also stated that defendant reserved the right to seek a reduction from the presumptive sentences as well as concurrent sentences.

In addition, at the plea hearing, the court questioned defendant concerning the agreement and informed defendant that the court could impose consecutive sentences as a result of the plea.

THE COURT: . . . [D]o you understand that the State is indicating to the [c]court at your sentencing, that [it] will remain silent on the issue of whether the [c]court should impose concurrent or consecutive sentencing, on these Sussex County charges? [DEFENDANT]: Yes.

THE COURT: However, the State is reserving the right to comment at sentencing about whether the sentence that the [c]court imposes on the Sussex County charges should run consecutive to the sentences that you're presently serving? . . . [DEFENDANT]: Yes.

THE COURT: So, there's this distinction in the recommendation that's being given to the

[c]court by the State, in terms of remaining silent on the Sussex County charges, about whether the sentences should run consecutive or concurrent, but speaking to the [c]court at your sentencing about the issue of whether the Sussex sentence should run consecutive to the other out-of-county sentences. Is that clear to you? [DEFENDANT]: Yes, it is.

Defendant also argues that his attorney erred by allowing him to plead guilty to the robbery charge because he did not establish an adequate factual basis for criminal liability as a principal or accomplice. We disagree. N.J.S.A. 2C:2-6(c) provides in pertinent part that an individual "is an accomplice of another person" if:

(1) With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person in planning or committing it; or

(c) Having a legal duty to present the commission of the offense, fails to make [a] proper effort so to do . . . .

At the plea hearing, defendant provided an adequate factual basis to establish accomplice liability for the robbery charge. Defendant stated on September 27, 2001, he was at a delicatessen in Andover Township with Micheal Gardi (Gardi) and Gary Hinton (Hinton). Defendant said he gave Hinton the gun that was used in the robbery of the delicatessen. Defendant acknowledged that Gardi and Hinton had provided statements to the police indicating he had entered the delicatessen to perpetrate the robbery. He also admitted that he drove the get-away car.

Defendant further argues that he was denied the effective assistance of appellate and PCR counsel because they did not challenge the sentences and seek re-sentencing pursuant to Natale, supra, 184 N.J. 458. Again, we disagree. In Natale, the Court concluded that a sentence violates the Sixth Amendment if the court imposed a sentence longer than the statutory presumptive term based on judicial findings other than a prior criminal conviction. Id. at 489-90. Here, the court based its sentence on defendant's prior criminal convictions and the facts he admitted at the plea hearing. Thus, appellate and PCR counsel did not err by failing to raise the sentencing issue on appeal or in the PCR proceeding.

In addition, defendant argues that he should be allowed to withdraw his plea because the assistant prosecutor acted improperly by commenting on the issue of consecutive sentencing. However, as we stated previously, in the plea agreement, the State reserved the right to comment on whether the Sussex County sentences imposed would run concurrent or consecutive to the sentences defendant was then serving. The record reflects that the assistant prosecutor limited his comments to that issue.

Affirmed.

20120727

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