NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-09-3545.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Koblitz.
Defendant Miguel DeJesus appeals from the November 18, 2011 order denying his petition for post-conviction relief (PCR) after oral argument without an evidentiary hearing. Defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) after shooting the victim in the back. He was sentenced to an eight-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant argues that the PCR court inappropriately denied his request for an evidentiary hearing. He also argues that he was denied effective assistance of counsel in part because his attorney did not argue threemitigating factors at sentencing. N.J.S.A. 2C:44-1(b)(3), (5) & (12). Because those mitigating factors were not applicable to his case, we affirm.
The presentence report describes the following facts. Defendant claimed that he purchased a cellular phone for twenty dollars that he suspected might be stolen. He received "chirps"and arranged a meeting with the female on the other end. Believing he might be attacked, defendant brought a gun. The male victim approached defendant, accusing defendant of stealing the phone. Defendant showed the victim the gun he had concealed in his waistband. Defendant fired one shot at the ground, then fired a second shot, hitting the victim in the back. The victim is partially paralyzed as a result of the shooting.
The victim's fiancée offered a statement at sentencing that was read by a Victim Witness Advocate. Neither the State, defense counsel, nor defendant presented any argument at the sentencing hearing. The sentencing judge found aggravating factors 3, "[t]he risk that the defendant will commit another offense[, ]" N.J.S.A. 2C:44-1(a)(3), and 9, "[t]he need for deterring the defendant and others from violating the law[, ]" N.J.S.A. 2C:44-1(a)(9). He also found mitigating factors 6, "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service[, ]" N.J.S.A. 2C:44-1(b)(6), and 7, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[, ]" N.J.S.A. 2C:44-1(b)(7). The judge found that the aggravating factors outweighed the mitigating factors, but imposed a mid-term sentence based on the plea agreement.
On appeal, defendant raises the following issues:
POINT I: THE PCR COURT'S DENIAL OF PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING WAS ERRONEOUS.
POINT II: BECAUSE THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL HIS PETITION FOR POST-CONVICTION ...