September 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RACHENE COUNCIL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-04-0818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012 -
Before Judges Harris and Hoffman.
Defendant Rachene Council appeals from the July 2, 2010 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On February 25, 2004, defendant appeared before the trial court and, pursuant to a negotiated plea agreement in connection with a fourteen-count indictment, pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); first-degree possession of controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(1) (count eleven); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count thirteen). In exchange for the guilty pleas, the State agreed to dismiss the remaining counts of the indictment and to recommend an aggregate sentence of a sixteen and one-half-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State further agreed not to seek an extended-term sentence on the charge of first-degree possession of CDS with intent to distribute.*fn1
On the same date, co-defendant Darryl Dogan appeared before the same trial court and, pursuant to a negotiated plea agreement in connection with the same fourteen-count indictment, pled guilty to count one, as amended to third-degree criminal restraint, N.J.S.A. 2C:13-2a; count six, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and count fourteen, certain persons not to have weapons, N.J.S.A. 2C:39-7b, as amended to a third-degree offense. Dogan also pled guilty to third-degree possession of CDS under a separate indictment. In exchange for Dogan's guilty pleas, the State agreed to dismiss the remaining counts of the indictment and recommend an aggregate sentence of a ten-year custodial term with a five-year period of parole ineligibility.
Defendant and Dogan were both sentenced in accordance with their respective plea agreements.
The indictment arose out of a dispute between defendant and Donald Franklin, a drug dealer who owed him money. On June 27, 2002, Franklin came to defendant's residence in Neptune. When Franklin attempted to leave, defendant and Dogan assaulted him, confined him for approximately one hour by duct taping his arms and mouth, and threatened him with a gun. The confinement ended not by defendant or Dogan voluntarily releasing Franklin, but because he escaped and alerted the police.
On October 24, 2004, defendant appealed, challenging his sentence. On December 13, 2005, following oral argument, we affirmed. State v. Council, No. A-1900-04 (App. Div. December 13, 2005).
On this appeal, defendant raises the following arguments:
POINT I THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF PLEA COUNSEL BASED ON COUNSEL'S FAILURE TO PROPERLY ADVISE THE DEFENDANT ON THE NATURE OF THE DEFENDANT'S CONDUCT IN RELATION TO THE KIDNAPPING CHARGE.
POINT II THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF SENTENCING COUNSEL BASED ON COUNSEL'S FAILURE TO MAKE ANY MEANINGFUL ARGUMENT ABOUT THE ACUTE DISPARITY BETWEEN THE DEFENDANT'S AND CO-DEFENDANT'S SENTENCE AND THIS FAILURE DEPRIVED THE DEFENDANT OF A FAIR SENTENCING HEARING AND LED THE COURT TO IMPOSE A HARSH, UNFAIR SENTENCE.
POINT III THE DEFENDANT'S CLAIM OF THE INEFFECTIVE ASSISTANCE OF SENTENCING COUNSEL, BASED ON THE COUNSEL'S FAILURE TO MAKE ANY MEANINGFUL ARGUMENT ABOUT THE ACUTE DISPARITY BETWEEN THE DEFENDANT'S AND CO-DEFENDANT'S SENTENCE, IS NOT BARRED BY R. 3:22-3, 4, OR 5 BECAUSE THE CLAIM WAS NOT AND COULD NOT HAVE BEEN PREVIOUSLY RAISED.
In a supplemental pro se brief, defendant raised the following additional argument:
POINT I REGARDLESS IF INEFFECTIVE ASSISTANCE OF COUNSEL IS UNFOUNDED, DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE MERITS OF THE DISPARITY OF SENTENCES AND THE INADEQUATE FACTUAL BASIS TO SUPPORT A GUILTY FINDING FOR A FIRST-DEGREE KIDNAPPING CHARGE.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction." Id. at 58.
While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
On May 28, 2010, Judge Ronald Lee Reisner heard oral argument on defendant's PCR application. Judge Reisner denied the petition for PCR, without conducting an evidentiary hearing, finding defendant had "not presented a prima facie case of ineffective assistance of counsel for failure to challenge the presence of the elements of first-degree kidnapping or the adequacy of his plea, pursuant to the standard outlined in Strickland and Fritz."
Based upon our review of the record and applicable law, we are satisfied that defendant's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of counsel, as he has failed to show his attorneys' performance was deficient or resulted in prejudice. Additionally, we note that an excessive sentence is not an appropriate basis for PCR. State v. Acevedo, 205 N.J. 40, 46 (2011). Nevertheless, we reject defendant's contention that his sentence was excessive or disparate, as defendant and Dogan did not plead guilty to the same charges.
We affirm substantially for the reasons expressed in Judge Reisner's written opinion of July 2, 2010.