NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-06-2401.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Plaisted, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Koblitz and Accurso.
Defendant Kason Miles appeals from the May 16, 2011 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. Defendant claims that his counsel was ineffective because he did not argue mitigating factors at sentencing and failed to process an appeal although requested to do so. We affirm.
Defendant was originally indicted for first-degree murder, N.J.S.A. 2C:11-3(a) and related offenses. He pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as well as second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, second-degree robbery, N.J.S.A. 2C:15-1, fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). He agreed to testify against his co-defendant and was offered a maximum sentence of twenty-two years in prison subject to an 85% parole ineligibility term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He received that sentence.
Defendant gave a written confession after waiving his Miranda rights. He stated that he went to his girlfriend's house with his co-defendant to rob and scare her. After she gave them $400, the co-defendant shot her in the back with a shotgun. Defendant then took a butcher knife from the kitchen and slashed her throat. He also took ecstasy pills and liquor from the scene and fled.
Defendant argued in his PCR petition that, although he requested an appeal, his attorney did not process it. He also claimed that the lawyer was ineffective in not arguing certain mitigating factors. The PCR judge, who had also accepted defendant's guilty plea and sentenced defendant, determined that the aggravating factors "overwhelmingly" and "substantially" outweighed the mitigating factors argued by defendant. After holding an evidentiary hearing, the judge found privately retained defense counsel credible when he testified that he does not handle appeals and was not asked to file an appeal by defendant.
Defendant raises the following issues on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S DUE PROCESS RIGHT TO HAVE ALL MITIGATING FACTORS CONSIDERED AT SENTENCING WAS VIOLATED.
POINT II: TRIAL COUNSEL'S FAILURE TO PRESENT A MITIGATING FACTOR ARGUMENT AT SENTENCING, AND HIS FAILURE TO FILE A NOTICE OF APPEAL ON BEHALF OF ...