On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-02-0143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges Simonelli and Waugh.
Defendant Stephen Grasch appeals from the February 1, 2011 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was the kingpin in a drug trafficking enterprise involving sixty co-defendants. On February 21, 2008, he waived indictment and pled guilty to first-degree manufacturing, distributing, or dispensing a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1). The State recommended a term of imprisonment not to exceed twelve years with six years of parole ineligibility. In the plea agreement, the State acknowledged mitigating factor twelve "[t]he willingness of the defendant to cooperate with law enforcement authorities," N.J.S.A. 2C:44-1b(12), and agreed that defendant's cooperation would be considered for a downward departure if he supplied "useful, relevant information that is helpful to" Pennsylvania authorities in an unrelated investigation of the suspicious deaths of three men. Defendant was a "person of interest" in that matter. Defendant agreed not to appeal his sentence pursuant to Rule 3:9-3(d).
At the plea hearing before Judge Batten, defendant acknowledged that the information contained on the four plea forms was accurate and fully described the plea agreement; he had initialed or signed each page; and he had discussed the plea agreement with defense counsel. He admitted that he had engaged in a drug trafficking enterprise that distributed approximately nine pounds of cocaine over a twenty-month period.
At sentencing, defense counsel requested a downward departure to the second-degree range based on mitigating factor twelve, arguing that defendant had supplied useful information to the Pennsylvania authorities. The State opposed the request, arguing that mitigating factor twelve did not apply because defendant provided no useful information that matter to the investigation; he merely provided information that eliminated himself as a suspect. The State also argued that defendant faced a mandatory life sentence if convicted of the charge, and received a "major benefit" from the plea agreement.
Judge Batten emphasized that this matter "may very well be the largest drug trafficking network prosecution in the history of Cape May County. It is significant. And [defendant is] the individual most responsible for this investigation and these offenses, the sponsor if you will, the money maker in this enterprise[.]" The judge found aggravating factors three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); five, "[t]here is a substantial likelihood that the defendant is involved in organized criminal activity," N.J.S.A. 2C:44-1a(5); and nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The judge also found and gave moderate weight to mitigating factor seven, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1b(7). The judge also found and gave slight weight to mitigating factor twelve for two reasons: (1) defendant's cooperation related to a "wholly unrelated investigation . . . [in] a wholly different jurisdiction[;]" and (2) "the information [defendant] provided apparently yielded no difference." The judge imposed the sentence provided in the plea agreement, emphasizing that defendant faced life in prison and received "a substantial benefit" from the plea agreement.
Represented by a new attorney, defendant filed a motion for reconsideration, arguing that his sentence was excessive because Judge Batten failed to give greater weight to mitigating factor twelve. In opposition, the State argued that the judge should not have applied mitigating factor twelve at all because defendant provided no useful information to the Pennsylvania authorities, and defendant received a favorable plea deal.
Judge Batten denied the motion, concluding there were no new circumstances warranting reconsideration, and no basis to vacate the plea. Defendant filed an appeal from his sentence on August 25, 2009, and withdrew it on February 11, 2010. The appeal was dismissed by order entered on February 18, 2010.
Represented by a different attorney, defendant filed a PCR petition, raising the same excessive sentence argument he had raised in his motion for reconsideration. Defendant also asked Judge Batten to order the Pennsylvania authorities to submit the information he had provided to them and hold a hearing to determine the information's value. Judge Batten concluded that defendant's excessive-sentence challenge could only be raised on direct appeal, the challenge did not meet any of the exceptions in Rule 3:22-2 to warrant raising it in a PCR petition, and it was procedurally barred by Rule 3:21-10(a).
Addressing the merits, the judge held that: (1) he had properly weighed mitigating factor twelve; (2) defendant received a "substantially beneficial" sentence at the low end of the range for a first-degree crime; (3) the facts did not justify a downward departure; (4) "[t]he decision to possibly grant the downward departure was based on subjective criteria, not an objectively identifiable set of events that would trigger the departure[;]" (5) the court lacked jurisdiction over the Pennsylvania authorities; and (6) defendant was advised of his right to appeal and filed an appeal. This appeal followed.
On appeal, defendant contends for the first time that his first attorney rendered ineffective assistance by not requesting both the production of the information he had provided to the Pennsylvania authorities and a hearing to determine the information's value. We "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); State v. ...