NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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