June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
CARLOS MONTES, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 04-12-0475.
Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Andrew J. Shaw, Designated Counsel, on the brief).
Before Judges Sapp-Peterson and Nugent.
On leave granted, plaintiff State of New Jersey appeals from the Law Division order that granted defendant Carlos Montes's petition for post-conviction relief (PCR) and directed that a new sentencing hearing take place. The PCR judge found that counsel was ineffective at sentencing because he did not urge the court to consider several mitigating factors, which, if raised, would probably have resulted in the court sentencing defendant to a prison term appropriate to a crime of one degree lower than first-degree attempted murder. The PCR judge also determined that because of the disparity between defendant's sentence and co-defendant Victor Colorado's sentence, a new sentencing hearing should be held. Having considered the parties' arguments in light of the record and controlling law, we conclude defendant did not make a prima facie showing that counsel was ineffective. We also conclude that defendant is not entitled to a new sentencing hearing. Accordingly, we reverse.
On May 4, 2002, defendant, then twenty-one years old, stabbed a former co-worker, James E. Conklin, Jr., five times. According to the statements defendant made when he pled guilty, his employer fired him and co-defendant, Victor Colorado, because Conklin claimed they had threatened him. Deciding to get even and harm Conklin, defendant armed himself with a knife and returned with co-defendant to the employer's building on the night of the crime. When they arrived, Conklin was standing across a parking lot. They crossed the parking lot and defendant grabbed Conklin from behind and stabbed him in the back five times. After stabbing Conklin, defendant fled without making any attempt to call for help. He knew the victim's father "was there . . . [and] I figured he had help at that time." Defendant later turned himself in to the police.
After waiving his right to an indictment, defendant was charged in an accusation with first-degree conspiracy, N.J.S.A. 2C:5-2 (count one), and first-degree attempted murder, N.J.S.A. 2C:5-1 and 11-3 (count two). On December 10, 2004, he pled guilty to both counts. In exchange, the State agreed to recommend a ten-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and that defendant pay one-half of the victim's medical bills. In response to the court commenting on the severity of the sentence, defense counsel responded, "Judge, I did want to indicate to the [c]ourt that we not only weren't giving up our right to argue, but we would assert the fact that these two offenses merge at the time of sentencing." The court acknowledged that the sentences would merge and the prosecutor confirmed, "[t]hey merge. There's no dispute."
On April 8, 2005, defendant appeared for sentencing. Contrary to the statement defense counsel made during the guilty plea proceeding, he did not argue for a lesser sentence. Rather, he told the judge: "The work in this case related to at least the sentencing disposition has been accomplished a long time ago as a result of the plea negotiation . . . ." Counsel also told the court, "a true balancing test [of aggravating and mitigating factors] probably doesn't need to take place . . . because of the particular recommendation that's being made." Counsel then pointed out that the incident was an aberrant occurrence in defendant's life; that defendant really had no prior criminal record, his only previous encounter with the law resulting in a conditional discharge; and, that after serving his sentence, defendant was unlikely to commit another crime. Defense counsel informed the judge that defendant "is ready to face the sentence to which he has entered an agreement . . . ."
Finding aggravating factor nine, the need for deterrence, and mitigating factor seven, the absence of a criminal history, the judge sentenced defendant on both counts to concurrent ten-year prison terms subject to NERA, ordered that defendant make restitution to the Violent Crimes Compensation Board (VCCB) for any expenses the VCCB incurred on behalf of Conklin, and imposed appropriate assessments and penalties. Inexplicably, neither defense counsel nor the prosecutor reminded the judge to merge the charges.
Two months later, the same judge sentenced co-defendant, who had been charged in a two-count accusation with committing the same crimes as defendant. The judge merged the two counts, imposed a five-year prison term subject to NERA, and also imposed appropriate assessments and penalties. The court found mitigating factors seven, eight, and twelve, the absence of a prior criminal history, the unlikelihood of recurrence, and defendant's willingness to cooperate with law enforcement authorities; and sentenced defendant to a downgraded five-year prison term as authorized by N.J.S.A. 2C:44-1f(2).
More than three years later, on December 16, 2008, defendant filed a motion for leave to appeal, which we ultimately granted. The appeal was heard on a sentencing calendar pursuant to Rule 2:9-11.
During oral argument on his direct appeal, defendant acknowledged that his sentence was "the bottom end of the first degree, " but nevertheless argued "for a reduction to second degree based on . . . three different mitigating factors" that were not presented to the sentencing judge. Noting that his agreements to compensate the victim and testify at co-defendant's trial were not considered at sentencing, defendant contended that those factors, along with the "sizeable stack of support letters, " and aberrant nature of the incident, should have resulted in the trial court considering a reduction of the crime from first to second degree for sentencing purposes.
We affirmed the sentence, determining that it was "not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." We remanded, however, "for the trial court to consider whether to merge conspiracy to commit murder (count one) with attempted murder (count two)."
Five months later, and more than five years after being sentenced, defendant filed his PCR petition. Following the appointment of counsel defendant amended his petition and made three arguments: his counsel was ineffective for failing to present all applicable mitigating factors and to argue for a lesser state prison term; his sentence should be reduced because of the disparity between his sentence and that of co-defendant; and the sentencing court did not merge the two offenses.
The judge who heard defendant's PCR petition granted it without a hearing,  rejecting the State's arguments that the petition was barred by Rule 3:22-4, which precludes, among other grounds for relief, claims that could have been raised on direct appeal, and by Rule 3:22-5, which precludes re-litigation of grounds for relief previously adjudicated. In a written decision, the judge explained that PCR petitions are rarely barred when they raise ineffective-assistance-of-counsel claims because such claims implicate a defendant's Sixth Amendment right to counsel, and because the courts generally do not entertain ineffective-assistance-of-counsel claims on direct appeal.
The judge further reasoned that defendant's petition was not barred by Rule 3:22-5 because an appellate court "scrutinizes [the sentence] only to determine if it exceeds the bounds of sentencing laws or falls outside the range of discretion allowed by common notions of fairness[, ]" that is, whether there has been an abuse of discretion; whereas "the PCR court considers the entire range of possibilities within the scope of [a sentencing judge's] discretion, as it addresses the probability of a different result." The judge explained that a PCR court's focus "is upon how the presentation of several additional mitigating factors would probably have changed the outcome of [defendant's] sentence."
Addressing the merits of defendant's PCR petition, the judge found that had trial counsel raised additional mitigating factors at defendant's sentencing, there was a probability the sentencing judge would have sentenced defendant as if he had committed a second-degree crime, rather than a first-degree crime. The judge explained that defendant should have argued mitigating factor six, because defendant "appear[ed]" to have paid restitution to the VCCB; and mitigating factor nine, in view of the content of the many letters and character references that people provided on defendant's behalf. The judge further explained that mitigating factor nine "strongly implicates mitigating factor eight, namely, the defendant's character and attitude indicate that he is unlikely to commit another offense; and that defendant's turning himself into the police "can form a basis for mentioning of mitigating factor twelve, "[t]he willingness of the defendant to cooperate with law enforcement authorities."
Based on her consideration of all of the mitigating factors that should have been argued, along with the absence of a criminal history and the likelihood that defendant would affirmatively respond to probationary treatment, the PCR judge found the sentencing judge "would likely have concluded that [defendant] should be sentenced as a second [degree] offender." For those reasons, the PCR judge found that defendant had satisfied both parts of the test for ineffective assistance of counsel.
The PCR judge also found that because the co-defendant received a five-year prison term, the disparity in sentencing "may not have been justified because [defendant] and . . . co-defendant both pled to the same exact charges and received two completely different sentences." The judge was "not persuaded that [defendant] is more culpable than . . . co-[d]efendant because while the stabbing took place there is no evidence that . . . co-[d]efendant tried to stop [defendant] from hurting Mr. Conklin or tried to get help for the victim." Because defendant and co-defendant were charged with identical crimes, because the sentencing judge applied different mitigating factors under similar circumstances, and because defendant's sentence was twice that of co-defendant's sentence, the judge concluded "a new sentencing hearing should be held so that court can explore further the reasons for the disparity in the sentences between [defendant] and . . . co-[d]efendant."
On leave granted, the State appealed from the PCR judge's confirming order. The State argues:
PETITIONER'S MOTION FOR POST-CONVICTION RELIEF IS TIME AND PROCEDURALLY BARRED.
PETITIONER HAS FAILED TO PRESENT A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THUS IS NOT ENTITLED TO AN EVIDENTIARY HEARING.
THE SENTENCING JUDGE IMPOSED A LEGAL AND REASONABLE SENTENCE.
At the outset, we reject the State's argument that defendant's petition is time-barred because it was not filed within five years of the date of the judgment of conviction as required by Rule 3:22-12. During oral argument before the PCR judge, defendant stated: "Regarding the PCR petition itself, I just wanted to note on page [five] of the brief . . . the State did acknowledge that the PCR is not time-barred and I just wanted to make that clear for the record." The court responded, "yes." The State corrected neither defense counsel nor the court, and did not assert the petition was time-barred when it argued its position to the court. For that reason, we decline to consider the issue. See State v. M.A., 402 N.J.Super. 353, 358, n.1 (App. Div. 2008) (declining to address an argument that had not been raised by the State before the trial court); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (recognizing the well-settled principle that appellate courts will generally decline to consider questions raised for the first time on appeal unless the questions involve the trial court's jurisdiction or matters of great public interest).
We also reject the State's arguments that defendant's ineffective-assistance-of-counsel claim is barred by Rule 3:22-4 because it could have been raised on direct appeal, and barred by Rule 3:22-5 because the issues in the PCR petition were adjudicated on direct appeal. "Under New Jersey case law, petitions are rarely barred from raising ineffective-assistance-of-counsel claims on post-conviction review." State v. Preciose, 129 N.J. 451, 459-460 (1992). That is "because those claims are grounded in the Sixth Amendment and the New Jersey Constitution." Id . at 460. The PCR judge did not err by deciding that defendant's PCR petition was not barred by Rule 3:22-4.
Nor does Rule 3:22-5, which bars previously adjudicated claims, bar defendant's ineffective-assistance arguments. The only issue a defendant may raise before the Appellate Division on a sentencing calendar is "whether the court imposed a proper sentence[.]" R. 2:9-11. Defendant does not argue that his counsel's dereliction resulted in the sentencing judge imposing a sentence that is improper under an appellate court's standard of review; rather, he argues that but for counsel's dereliction his sentence likely would have been downgraded; and had that occurred, the downgraded sentence would also have been a "proper sentence." Defendant's argument is different from the argument that the sentencing judge imposed a sentence that was not proper – the only claim cognizable on an appeal under Rule 2:9-11.
We turn to defendant's claim that his counsel was ineffective. To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient, " that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).
We agree entirely with the PCR judge's determination that defendant satisfied the first Strickland prong. Generally, "the failure to present and argue the mitigating evidence [at sentencing] can only be explained as attorney dereliction." State v. Hess, 207 N.J. 123, 154 (2011). "[D]efendant was entitled to an effective and forceful argument to the trial court by [his] counsel, stressing that the nature of and relevant surrounding circumstances pertaining to the offense and the facts 'personal to defendant' justified invocation of the downgrading provision" of N.J.S.A. 2C:44-1f(2). State v. Briggs, 349 N.J.Super. 496, 503 (App. Div. 2002) (quoting State v. Megargel, 143 N.J. 484 (1996)).
Here, though counsel informed the court during the plea colloquy that defendant reserved his right to argue for a lesser sentence, he made no such argument at sentencing. He not only failed to argue all relevant mitigating factors, but also conceded that the plea agreement was dispositive when he informed the court, "[t]he work in this case related to at least the sentencing disposition has been accomplished a long time ago as a result of the plea negotiation[.]" Defendant was derelict for not forcefully arguing all relevant mitigating factors and urging the court to impose a downgraded sentence.
Although defendant established the first prong of Strickland, he failed to establish the second Strickland prong. He did not establish that his sentence would have been different had counsel effectively represented him at the sentencing proceeding.
When a sentencing judge "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, " the judge may sentence a defendant who has been convicted of a first or second degree crime "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." N.J.S.A. 2C:44-1f(2). In evaluating whether to impose a downgraded sentence under the statute, a sentencing court "must apply a two-step process[:] The judge must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence." State v. Rice, 425 N.J.Super. 375, 384 (App. Div.) (internal quotation marks and citations omitted) (emphasis in original), certif. denied, 212 N.J. 431 (2012).
"'The decision to downgrade a defendant's sentence in the interest of justice should be limited to those circumstances in which defendant can provide 'compelling' reasons for the downgrade.'" Briggs, supra, 349 N.J.Super. at 502 (quoting Megargel, supra, 143 N.J. at 501-02). The "compelling" "reasons must be in addition to, and separate from, the 'mitigating factors which substantially outweigh the aggravating factors, ' that the trial court finds applicable to a defendant under the first prong of [N.J.S.A.] 44-1f(2)." Megargel, supra, 143 N.J. at 502.
The PCR judge appears to have overlooked the requirement that compelling reasons supporting an "interest of justice" determination must be made "in addition to, and separate from, " the finding of mitigating factors under N.J.S.A. 2C:44-1(b). The judge's determination of the second Strickland factor --that the sentencing judge probably would have downgraded defendant's sentence had counsel argued appropriate mitigating factors -- focused exclusively on the mitigating factors, but cited no additional compelling reasons. Defendant has identified no compelling reasons in addition to, and separate from, the mitigating factors that he says his plea counsel should have raised at sentencing.
"In determining whether a defendant's first or second degree conviction should be downgraded[, ] . . . [i]t is . . . paramount that the sentence reflect the Legislature's intention that the severity of the crime now be the most single important factor in the sentencing process." Megargel, supra, 143 N.J. at 500. "'[B]ecause the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons should arise from within the context of the offense itself.'" Rice, supra, 425 N.J.Super. at 385 (quoting State v. Lake, 408 N.J.Super. 313, 326 (App. Div. 2009)).
In the case before us, the PCR judge focused on the offender rather than the offense. It is difficult to conceive of compelling reasons for a downgrade arising from within the context of defendant's offense. After learning that the victim had reported defendant's threat to their mutual employer, defendant decided to seek revenge, armed himself with a knife, approached his victim from behind, and stabbed him five times. Nothing about defendant's arming himself, intending to injure his victim, and carrying out that intent, implicate compelling reasons warranting a downgraded sentence in the interest of justice.
Absent any finding by the judge of compelling reasons separate from the mitigating factors; and absent the identification of any such compelling reasons by defendant; defendant could not satisfy the second Strickland prong by demonstrating the probability of a lesser sentence. For that reason, we reverse the PCR judge's decision that defendant satisfied the second Strickland prong. The decision was unsupported by any evidence of compelling reasons to downgrade defendant's sentence in the interest of justice.
Lastly, we address defendant's claim that his sentence is invalid because of the disparity between it and co-defendant's sentence. The record is not entirely clear as to whether defendant is asserting his disparity-in-sentencing claim as part of, or separate from his ineffective-assistance-of-counsel claim. Counsel could have hardly been ineffective for failing to anticipate the sentence co-defendant would receive two months after defendant's sentence was imposed. If defendant's argument is that his counsel was ineffective for not raising the disparity claim when he was sentenced, his argument has no merit.
On the other hand, if raised as a separate claim, the sentence-disparity claim is barred by Rule 3:22-4 because it was not raised on direct appeal. Co-defendant was sentenced on June 10, 2005. Defendant argued his direct appeal on July 27, 2010. He has offered no plausible reason why he did not raise the issue on direct appeal. The considerations discussed above concerning ineffective assistance of counsel obviously would not apply to this issue if it is separate from defendant's ineffective-assistance claim.
More importantly, defendant did not establish his disparity claim. Because he raised the claim in a PCR petition, he was required to establish it under the PCR rules. Rule 3:22-2 recognizes four grounds for PCR relief, including "[i]mposition of [a] sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . ." R. 3:22-2(c). A defendant must establish a claim under Rule 3:22-2(c) by a preponderance of the credible evidence." See Preciose, supra, 129 N.J. at 459.
To sustain that burden, specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision. A court reviewing a petition that does not allege facts sufficient to sustain the burden of proof should not jump to its own conclusions regarding the factual circumstances of the case.
[State v. Mitchell, 126 N.J. 565, 579 (1992).]
"Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996). Nevertheless, "'[a] sentence of one defendant not otherwise excessive is not erroneous merely because a codefendant's sentence is lighter.'" Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969) (alteration in original)). When considering the imposition of disparate sentences, a "trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233.
Here, defendant failed to establish that his case and that of co-defendant were substantially similar regarding all relevant sentencing criteria. The patently obvious distinction between the two was that defendant stabbed the victim five times but co-defendant did not participate, physically, in the assault. Significantly, defendant's pre-sentence report included co-defendant's statement that he and defendant intended only to confront the victim, punch him, and leave. Co-defendant said that he did not know that defendant had a knife until defendant struck the victim.
During his guilty plea, defendant was asked: "And did [co-defendant] know that you had a knife on you?" Defendant responded, "I think he did." Defendant argues that this and his other statements about co-defendant's role demonstrate that their participation in the crime was substantially similar in terms of sentencing criteria. What defendant "thought" does not establish what co-defendant knew. Defendant's "thought" about what defendant might have known was speculative Speculation does not constitute specific facts necessary to prove by a preponderance of the evidence that defendant is entitled to PCR relief