On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-05-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Defendant Carl Lee appeals from an August 31, 2010 Law Division Order that denied his petition for post-conviction relief (PCR). We reject defendant's argument that trial counsel rendered ineffective assistance during sentencing by neglecting to urge the judge to find the existence of three mitigating factors, and that appellate counsel rendered ineffective assistance by failing to argue on direct appeal that trial counsel's performance was deficient. We affirm.
Tried by a jury, defendant was found guilty of third-degree burglary. The State's proofs at trial demonstrated that defendant entered an office trailer parked on a construction site without permission and stole a length of chain and a jacket. At the time of sentencing on March 2, 2007, the State moved to sentence defendant to an extended term of imprisonment. Defense counsel opposed the State's motion, arguing that defendant had a "terrible" upbringing; the burglary in question was de minimis; defendant was not a violent offender; and defendant's salary of six dollars per hour was so low that he could not survive unless he resorted to petty theft. The judge granted the State's motion, reasoning that defendant's twelve prior indictable convictions established that defendant was a threat to the community.
The judge found the existence of three aggravating factors: number three, the risk that defendant would commit another offense; number six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted; and number nine, the need for deterrence. Defense counsel did not provide any statutory citations for the mitigating factors, see N.J.S.A. 2C:44-1(b)(1) to (13), but again urged the judge to consider defendant's upbringing, the petty nature of the theft involved, and the fact that defendant was not a violent offender. The judge imposed an extended-term sentence of eight years imprisonment, subject to a two and one-half year parole ineligibility term.
We affirmed defendant's conviction on direct appeal. State v. Lee, No. A-6364-06 (App. Div. February 3, 2009) (slip op. at 2), certif. denied, 199 N.J. 131 (2009). Although defendant raised four arguments on direct appeal, only his sentencing argument is relevant to the present PCR proceeding. Defendant's sentencing argument was framed in the following terms:
DEFENDANT'S EXTENDED TERM [SENTENCE] IS NOT WARRANTED, AS THE COURT FOUND THAT DEFENDANT WAS "NOT A DANGEROUS CRIMINAL," NOR WAS THERE A BASIS FOR AN IMPLICIT FINDING THAT A DISCRETIONARY EXTENDED TERM WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC. MOREOVER, THE IMPOSITION OF AN EIGHT YEAR SENTENCE WITH TWO YEARS PAROLE INELIGIBILITY WAS IN VIOLATION OF [STATE V.] DUNBAR'S, [102 N.J. 80 (1987)] REQUIREMENTS. THE SENTENCE IS SUCH A CLEAR ERROR OF JUDGMENT THAT IT SHOULD SHOCK THE JUDICIAL CONSCIENCE.
We rejected that sentencing argument, reasoning that the extended term sentence "was warranted" in light of defendant's twelve prior indictable convictions and his numerous juvenile adjudications of delinquency. Id. at 8. We also concluded that because defendant had a minimum of two prior indictable convictions, the most recent of which was within the past ten years, defendant's prior record satisfied the requirements of N.J.S.A. 2C:44-3(a) for imposition of an extended-term sentence as a persistent offender. Ibid. We also endorsed the trial judge's determination that although defendant was not a violent offender, the public was nonetheless entitled to be protected from crimes against property, such as the crime for which defendant was convicted at trial and the crimes of which defendant had been convicted on twelve prior occasions. Id. at 8-9. Ultimately, we held that the eight-year sentence the judge imposed was "in line with the aggravating factors that substantially outweighed the absence of any mitigating factors[,]" and that the sentence imposed fully complied with the requirements of State v. Pierce, 188 N.J. 155, 169-70 (2006) (establishing requirements for the imposition of an extended term sentence). Ibid.
The Supreme Court denied defendant's petition for certification. State v. Lee, 199 N.J. 131 (2009).
Defendant then filed the PCR petition that is the subject of this appeal. He argued that: the sentence imposed by the trial court "was improper and/or otherwise unconstitutional" because the judge impermissibly doubled-counted defendant's prior criminal record and failed to consider mitigating factors that were applicable; trial counsel rendered ineffective assistance by failing to urge the judge to consider mitigating factors one, two and four; and appellate counsel rendered ineffective assistance by failing to present an argument on direct appeal concerning trial counsel's failure to argue the existence of the three mitigating factors that we have already noted, and by failing to subject the State's case to "meaningful adversarial testing."
In a written opinion, Judge Toto rejected defendant's claims of ineffective assistance of trial and appellate counsel concerning the ...