July 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARL LEE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
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 mitigating factors. The judge reasoned:
[P]petitioner alleges that trial counsel was deficient in presenting the mitigating factors that were present in this case, and failed to object to the double counting of his past criminal record during the [judge's] assessment of the aggravating factors. As to this claim, petitioner has not met his burden under Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),] showing that trial counsel was deficient. . . . [T]he presumption weighs heavily in favor of counsel['s performance] falling within the range of reasonable professional assistance.
Here, trial counsel asked for a denial of the extended term, arguing that petitioner was subjected to a terrible upbringing, that the burglary in question was of de minimis value, and that petitioner was simply trying to survive as a poor individual making $6/hour. Trial counsel made these arguments in light of the fact that petitioner has a lengthy criminal record qualifying him for [an] extended sentence. Thus, the record does not tend to support petitioner's claim that trial counsel was deficient.
Even if such a deficiency was found, under prong two of Strickland, petitioner's ineffective trial counsel claim would likely fail. No credible evidence has been adduced that but for trial counsel's lack of arguing for mitigating factors (1), (2), and (4), and lack of objecting to the usage of petitioner's past criminal record in the assessment of the aggravating factors, the outcome of the extended term hearing would have been decided any differently.
Next, the judge addressed defendant's argument that appellate counsel was ineffective for failing to argue on direct appeal that trial counsel's performance at sentencing was deficient. The judge observed that even though appellate counsel did not expressly argue that trial counsel's performance was deficient for having failed to urge the three mitigating factors, the arguments trial counsel presented at sentencing were identical in substance to the three mitigating factors, and that the sentencing judge took those mitigating factors into consideration at sentencing. The PCR judge commented that the trial judge agreed with defense counsel that "petitioner was not a dangerous criminal and that the particular crime amounted to a minimal act." The judge concluded that had appellate counsel raised the issue, it would have been rejected. The judge signed a confirming order on August 31, 2010, denying defendant's PCR petition.
On appeal, defendant raises the following claims:
I. DEFENDANT-APPELLANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
II. DEFENDANT-APPELLANT MET HIS PRIMA FACIE BURDEN IN ESTABLISHING INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THEREBY WARRANTING AN EVIDENTIARY HEARING.
A. Ineffective Assistance of Trial Counsel.
B. Ineffective Assistance of Appellate Counsel.
II. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER AND/OR OTHERWISE UNCONSTITUTIONAL.
IV. THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION IN SUPPORT OF POST CONVICTION RELIEF.
To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate 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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The three mitigating factors in question are mitigating factor one, defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); number two, defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2); and number four, there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4).
Having carefully considered defendant's arguments in light of the record and the governing legal principles, we are satisfied that his contentions lack merit. We agree with Judge Toto's determination that although trial counsel did not refer to the three mitigating factors by their statutory citation, trial counsel forcefully argued each of the three mitigating factors. Counsel's argument at sentencing that the crime in question was merely a petty theft and that no violence was used supports mitigating factors one and two, namely, defendant's conduct did not cause or threaten serious harm and defendant did not contemplate that his conduct would cause such harm. And counsel's argument respecting defendant's "terrible" upbringing and his impoverished status as an adult support mitigating factor four, as such circumstances "tend to excuse . . . defendant's conduct," though "failing to establish a defense." Indeed, the judge agreed with and applied two of the mitigating factors trial counsel argued.
Therefore, trial counsel did not render ineffective assistance, as he presented the three mitigating factors in question, and appellate counsel was not ineffective for failing to raise that issue because the argument would have been meritless. State v. Echols, 199 N.J. 344, 361 (2009). In particular, trial counsel did indeed raise the very mitigating factors that defendant asserts counsel did not present. We affirm Judge Toto's conclusion that defendant failed to present a prima facie case of ineffective assistance of trial and appellate counsel concerning the mitigating factors.
We next address defendant's contention that the judge double-counted the aggravating factors. In particular, defendant maintains that the judge relied upon the same convictions as justification for imposing an extended-term sentence as he relied on to find the existence of aggravating factor six, "the extent of defendant's prior record," N.J.S.A. 2C:44-1(a)(6). N.J.S.A. 2C:44-3(a) requires that a defendant have two prior convictions to be eligible for sentencing as a persistent offender. Defendant had twelve. The judge was certainly entitled to consider the extra ten as an aggravating factor. We affirm Judge Toto's conclusion that even if appellate counsel had raised the purported double-counting issue on appeal, such effort would have been unsuccessful. For that reason, the second Strickland prong was not satisfied. We reject the claims defendant has advanced in Points II and III.
We now address Point IV, in which defendant reasserts any other argument raised in PCR counsel's brief or in defendant's pro se petition, of which there was only one: appellate counsel failed "to subject the prosecution's case to meaningful adversarial testing," which "meant that the adversarial process became presumptively unreliable." Defendant does not elaborate further. Defendant's argument requires no further discussion.
See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that a defendant must do more than make "bald assertions" that he was denied the effective assistance of counsel, and absent a certification providing the details of counsel's deficiencies, a reviewing court will reject the claim). We reject the argument defendant advances in Point IV.