October 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE MOYENO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-308.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012
Before Judges Parrillo and Maven.
Defendant, Jose Moyeno, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Charged with six counts of sexually-related crimes encompassing two separate child victims, defendant pled guilty to one first-degree aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(1), and third-degree criminal restraint, N.J.S.A. 2C:13-2, offenses involving a nine-year-old child. His aggregate sentence, in accordance with the negotiated plea, was the minimum ten-year term with an eighty-five percent parole disqualifier. On April 30, 2009, we affirmed defendant's sentence on our Excessive Sentencing Oral Argument (ESOA) calendar. The Supreme Court denied defendant's petition for certification. State v. J.M., 200 N.J. 209 (2009).
Defendant filed a timely PCR petition alleging ineffective assistance of counsel for failing: (1) to move that defendant be sentenced to a crime one degree lower; (2) to argue that application of aggravating factor 2, N.J.S.A. 2C:44-1(2), amounted to impermissible double counting; and (3) to advise defendant of the plea cut-off date. Following argument, the PCR court denied the petition, reasoning in part:
As to the [first], it's clear the transcript does indicate that his counsel at the time of sentencing asked that this Court sentence [defendant] to a term a degree lower so that is in fact not an issue. That is in the transcript so clearly[;] since she asked[,] there's no ineffective assistance of counsel.
The second issue is whether or not defense attorney should have or was required under Strickland v. Washington*fn1 or was ineffective in that she did not argue aggravating factor number two was inappropriate.
. . . In fact, counsel, in weighing all aggravating and mitigating factors it is not the number of aggravating factors to number of mitigating factors. These are subjectively considered by the Court.
It is not a mere fact of having two of one or three of another. I did in fact find two mitigating factors and I indicated . . . that I did not find that the mitigating factors outweigh the aggravating factors [and] that [defendant] should be sentenced to a degree lower.
I indicated that in weighing the aggravating and mitigating factors I find that something lower than the midrange was appropriate and I sentenced the defendant to the minimum for the offense for which he pled guilty to. I am satisfied that the second prong of Strickland would not be met and that is whether or not that additional aggravating factor was there.
I am satisfied that the appropriate sentence for the offense that [defendant] pled guilty to was the minimum for the offense he committed.
I am satisfied that even if that factor was not there I would not have sentenced him to a sentence one degree lower. I am satisfied and I think there's case law cited by the State in its brief that indicates it might very well be inappropriate for the Court to sentence a defendant in this type of offense to a degree lower.
All [in] all I am satisfied that the sentence that [defendant] received despite the efforts of [defense counsel] would have been the minimum for the offenses given the mitigating factors and the circumstances.
I am satisfied that even if defense attorney had done more than she did, what she did was in fact appropriate in the representation of [defendant] at the time of his sentencing and I am satisfied and evidently the Appellate Division agreed because they have affirmed the sentence, that the sentence was in fact appropriate.
I am satisfied that there is no showing of ineffective assistance of defense counsel with regard to the sentence that took place in this matter.
On appeal, defendant raises the following issues:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF.
(a) Failure to challenge an unsustainable aggravating factor during sentence.
(b) Failure to adequately argue for an applicable downgrade at sentencing.
II. REMAND FOR AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
We find no merit to these contentions.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58-61 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet the Strickland test. As a threshold matter, we note that defendant's claim of counsel ineffectiveness for failing to challenge the court's application of aggravating factor 2 and failing to adequately argue for a sentencing downgrade amount to no more than an excessive sentencing argument cloaked in "ineffective assistance of counsel" language. Such excessive sentencing claims, however, are not cognizable on PCR review. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-2 (2012); State v. Acevedo, 205 N.J. 40, 45, 47 (2011). They are also procedurally barred in this matter as either previously raised and decided, Rule 3:22-5, or capable of having been so raised, Rule 3:22-4. In any event, even if properly cognizable here, we concur with the PCR judge, who was also the sentencing judge, that such claims fail to meet the prejudice prong of the Strickland test. As the PCR court noted, neither of the claims now being made would have resulted in a different, more favorable outcome for defendant, and none required an evidentiary hearing.
Defendant's final argument fares no better. He essentially contends that counsel gave him an unclear deadline in which to consider the State's first plea offer of a flat four-year term and failed to inform him that there would be a substantial increase in his penal exposure by way of plea even if trial did not begin on the date originally scheduled. Not only is this claim factually unsupported, but even if true, there is nothing in the record to indicate the result would have been any different. We simply reiterate that the PCR judge was the same judge who received defendant's plea and later imposed a most lenient sentence on him.