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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...