July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MIGUEL DEJESUS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 RELIEF SHOULD HAVE BEEN GRANTED.
A. FAILURE TO ARGUE ALL RELEVANT MITIGATING FACTORS AT SENTENCING.
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, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985).]
Although Rule 3:22-2(c) precludes defendant from raising an excessive sentence argument in a PCR petition, State v. Clark, 65 N.J. 426, 436-37 (1974), he may raise ineffective assistance of sentencing counsel. Hess, supra, 207 N.J. at 129.
The PCR judge evaluated the second prong of the standard, whether any harm was done by counsel's failure to argue the mitigating factors. Because the judge determined that the mitigating factors did not apply, it was unnecessary to determine whether counsel violated professional standards by not arguing for them at sentencing.
We agree with the PCR judge that the mitigating factors argued by defendant do not apply. Defendant argues that he acted under a strong provocation. N.J.S.A. 2C:44-1(b)(3). Defendant's claim that he thought he might be "jumped" does not amount to the statutory "strong provocation." State v. Jasuilewicz, 205 N.J.Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986) (holding that strong provocation arises from actions of the victim and not the mental state of the defendant) He also maintains that the victim induced or facilitated the crime N.J.S.A. 2C:44-1(b)(5) This argument is completely inconsistent with defendant shooting the victim in the back after the first shot was fired Defendant argues that his confession to the police qualified as assisting the prosecution N.J.S.A. 2C:44-1(b)(12) A confession alone does not entitle a defendant to mitigating factor 12. State v. Read, 397 N.J. Super 598 613 (App Div) certif. denied, 196 N.J. 85 (2008) Thus the facts support none of the three mitigating factors defendant argues his counsel should have raised
An evidentiary hearing is only required when defendant presents a prima facie case of ineffective assistance of counsel and an evidentiary hearing would be helpful to develop the underlying factual context. State v. Marshall, 148 N.J. 89 158 cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). A prima facie case was not demonstrated here.