July 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KASON MILES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 DEFENDANT, WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).
This additional standard also applies in the context of guilty pleas:
[T]he first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)], and McMann v. Richardson, [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)]. The second, or "prejudice, " requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.
Hill v. Lockhart
474 U.S. 52
106 S.Ct. 366
Defendant argues that his counsel was ineffective at sentencing in that he did not argue certain mitigating factors. Such an argument is cognizable in a PCR petition. State v. Hess, 207 N.J. 123, 153 (2011). Defendant argues that his attorney should have argued four mitigating factors: that he had no prior convictions, his conduct was the result of circumstances unlikely to recur, his character and attitude was positive and he had cooperated with the State. N.J.S.A. 2C:44-1(b)(7), (8), (9) & (12). Defendant was nineteen years old at the time of the crime and had been adjudicated delinquent on two separate occasions as a juvenile. He also was arrested two other times as an adult. Thus, he had not led a law-abiding life. See State v. Read, 397 N.J.Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008) (stating that the lack of an adult criminal record deserves only minimal weight at sentencing when a defendant has a significant juvenile record). The presentence report reflects that defendant admitted to being under the influence of cigarettes dipped in embalming fluid at the time of the crime and to purchasing marijuana after the murder. Ingesting illegal substances prior to committing a crime is not a circumstance unlikely to recur. Defendant was the individual who set the killing in motion by deciding to rob his girlfriend as "payback." See State v. Kelly, 266 N.J.Super. 392, 396 (App. Div. 1993) (determining that an alcoholic defendant who had been drinking and whose friends instigated the robbery was not entitled to mitigating factor 8, that the crime was the result of circumstances unlikely to recur).
The judge found aggravating factor 2, the gravity and seriousness of harm inflicted and the victim's vulnerability, and 9, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(2) & (9). He found no mitigating factors. At the time of the PCR, the same judge found that even if defense counsel had argued the four mitigating factors that defendant highlights, and even if he had found that they applied, he would have found that the aggravating factors substantially outweighed the mitigating factors. The crime of aggravated manslaughter carries a sentence between ten and thirty years. N.J.S.A. 2C:11-4(c). The PCR judge appropriately considered the import of any alleged failure by defense counsel during sentencing.
We accept the PCR judge's factual finding that defendant never asked his attorney to file an appeal. Because the PCR judge was the fact-finder and because he had the opportunity to assess the credibility and demeanor of the witnesses first-hand, we defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Given that an appeal would have focused on the sentence, and the sentence was not an abuse of discretion, even had defendant perfected an appeal it would not have changed the outcome.
Affirmed. We remand only to revise the judgment of conviction to correct the statutory references for aggravated manslaughter and unlawful possession of a knife, as well as the degree of the charges of conspiracy, unlawful possession of a knife and possession of a knife for an unlawful purpose. We do not retain jurisdiction.