May 14, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FATIQUE SNEAD, a/k/a FATIQUE RAMONE SNEAD, TQ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1887.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ms. Juliano and Brynn Giannullo, Legal Assistant, on the brief).
Before Judges Simonelli and Koblitz.
Defendant Fatique Snead appeals from the June 3, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on ineffective assistance of counsel. We affirm.
The record reveals the following. A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one), and fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3 (count two) (the first indictment). The charges stemmed from an incident on December 5, 2008.
Another grand jury indicted defendant and co-defendants Ashley Chipparullo and Miaja Evans for second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one), and first-degree armed robbery, N.J.S.A. 2C:15-1 (count two) (the second indictment). The charges stemmed from the robbery of a Chinese food delivery driver, J.L., on June 9, 2009. Defendant, then twenty years old, committed this crime the day after he was arraigned on the weapons charges in the first indictment and while on bail.
Defendant and Chipparullo were also indicated under the second indictment for second-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six). The charges stemmed from the robbery of a Chinese food delivery driver, Q.X.Y., on June 11, 2009, two days after the first robbery.
Defendant pled guilty under the first indictment to second-degree unlawful possession of a weapon (count one), and under the second indictment to two counts of first-degree armed robbery (counts two and four). At the plea hearing, he testified that he demanded J.L.'s money and used his fingers to simulate a gun and put them to J.L.'s head in order to give J.L. the impression he would be shot if he did not comply. As defendant did this, one of his co-defendants took J.L.'s money, car keys, and the food he was delivering. The three co-defendants split the proceeds. Defendant also testified that he demanded Q.X.Y.'s money. When Q.X.Y. refused, he took a brick or blunt object, struck Q.X.Y. in the head and face, and then took his money, cell phone, and the food he was delivering.
Defendant faced a maximum fifty-year term of imprisonment on all charges. The State agreed to recommend a ten-year term on counts two and four of the second indictment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive five-year term on count one of the first indictment with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c. Defendant reserved the right to argue at sentencing for concurrent sentences.
At sentencing, trial counsel argued for concurrent sentences based on defendant's youthful age and hardship to his family. Defendant testified he was under the influence when he committed the crimes. The trial judge reviewed defendant's prior criminal record and found he had five juvenile adjudications, including an adjudication for possession of a weapon, N.J.S.A. 2C:39-5e(2), and a violation of probation; four adult municipal court convictions, including convictions for theft, N.J.S.A. 2C:20-3a, and unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e; and one indictable conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The judge found and applied aggravating factor 3, "[t]he risk that the defendant will commit another offense, " N.J.S.A. 2C:44-1a(3), based on defendant's prior criminal record and the fact that he committed the June 2009 offenses while on bail; and factor 9, "[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 placed great weight on mitigating factor 11, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents, " N.J.S.A. 2C:44-1b(11), based on defendant's youthful age. The judge imposed concurrent sentences based on defendant's "extreme youth" and the real-time considerations of NERA and the Graves Act.
Defendant timely filed a pro se PCR petition, arguing that defense counsel rendered ineffective assistance at the plea hearing by permitting him to accept a plea agreement that was substantially more harsh than those offered to Evans and Chipparullo. Defendant asserted that counsel rendered ineffective assistance at sentencing because he failed to argue for the following mitigating factors: factor 2, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm, " N.J.S.A. 2C:44-1b(2); factor 3, "[t]he defendant acted under a strong provocation, " N.J.S.A. 2C:44-1b(3); factor 4, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, " N.J.S.A. 2C:44-1b(4); factor 8, "[t]he defendant's conduct was the result of circumstances unlikely to recur, " N.J.S.A. 2C:44-1b(8); and factor 11. Defendant also asserted that counsel rendered ineffective assistance by failing to request that the judge consider sentencing defendant as a second-degree offender pursuant to N.J.S.A. 2C:44-1f(2), and failed to file a direct appeal.
Judge Mellaci, who was also the plea and sentencing judge, denied the petition without an evidentiary hearing. Regarding sentencing disparity, the judge noted three were significant differences between defendant and his co-defendants. Evans, age nineteen at the time of the crimes, only had two deferred juvenile dispositions, one juvenile conference committee, and one municipal court conviction,  and was only involved in the first armed robbery. Chipparullo, age nineteen at the time of the crimes, had no prior juvenile adjudications or adult criminal record. Defendant, on the other hand, had a lengthy criminal history, used violence during the second armed robbery by striking the victim in the head, and pled to a Graves Act offense. In addition, Evans and Chipparullo were sentenced two months after defendant, making it difficult for defense counsel to argue sentencing disparity of sentences that had not yet occurred.
Judge Mellaci determined that mitigating factor 2 did not apply because defendant threatened serious harm by using his fingers to simulate a gun, and defendant admitted at the plea hearing that this caused Q.X.Y. to be in fear. Mitigating factor 3 did not apply because there was "absolutely no suggestion in either robbery that the victim somehow provoked the defendant, and influenced his decision to rob them." Mitigating factor 4 did not apply because being under the influence of alcohol or drugs did not excuse or justify defendant's violent behavior. Mitigating factors 8 and 9 did not apply because "defendant committed the same exact offense under very similar circumstances twice, and he has an extensive criminal history for his age." The judge emphasized that defendant had committed numerous crimes before the age of twenty-one, and had "not offered any credible evidence of a change in character or attitude that would offset his serious criminal history." The judge also noted that he had found and applied great weight to mitigating factor 11.
Judge Mellaci concluded that because he found that the aggravating factors outweighed the mitigating factors, defendant was not entitled to be sentenced one degree lower. The judge determined there was no evidence that defendant requested an appeal, and nothing demonstrating that defendant would have prevailed on appeal. This appeal followed. On appeal, defendant raises the same arguments he raised before Judge Mellaci.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id . at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey).
"[I]n order to establish a prima facie claim, [the defendant] 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." Cummings, supra, 321 N.J.Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.
"When a guilty plea is part of the equation, [the Court has] explained that '[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Applying the above standards, we discern no reason to disturb Judge Mellaci's decision. We have reviewed defendant's arguments in light of the record and applicable law and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that defense counsel rendered effective assistance at all stages of the proceedings in this matter, and affirm substantially for the reasons expressed by Judge Mellaci in his well-reasoned oral opinion rendered on June 3, 2011.