August 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DEVIN POWELL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-07-0502, 04-08-0617 and 06-01-0012.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief).
Anthony J. Parenti, Jr., Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Lihotz.
Defendant Devin Powell appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The undisputed record reveals that defendant was indicted by the Somerset County grand jury in three separate indictments. Indictment No. 04-07-0502 charged defendant with second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11a; four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a); and fourth-degree joyriding, N.J.S.A. 2C:20-10b. Indictment No. 04-08-0617 charged defendant with second-degree eluding, N.J.S.A. 2C:29-2b. Indictment No. 06-01-0012, returned nearly sixteen months later, charged defendant with first-degree attempted murder of his mother, Dawn Powell-Reid, N.J.S.A. 2C:5-1 and 2C:11-3; and third-degree theft, N.J.S.A. 2C:20-3.
On April 5, 2007, represented by counsel, defendant executed a plea form setting forth the terms of a plea bargain regarding all three indictments. On April 12, pursuant to Rule 3:9-2, defendant executed three written stipulations, one as to each of the indictments. On April 13, defendant entered his guilty pleas.
The agreement called for defendant to plead guilty to: several counts of Indictment No. 04-07-0502, in return for an aggregate sentence not to exceed five years, all sentences to run concurrent to each other and concurrent to the sentences imposed on the other two indictments; the eluding charge in Indictment No. 04-08-0617, in return for a ten-year sentence, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the sentence to run concurrent to the sentences imposed on the other indictments; and both counts of Indictment No. 06-01-0012, in return for a maximum sentence of fourteen years subject to NERA, the sentences to run concurrent to each other and concurrent to the sentences imposed on the other indictments.
At the sentencing hearing on June 8, 2007, defense counsel, who was not the attorney representing defendant when he pled guilty, entered her appearance. The assistant prosecutor then reiterated the terms of the plea agreement. She noted the presence of defendant's mother and her desire to address the court. Defense counsel then indicated defendant fully understood the terms of the plea bargain. She asked defendant if he wished to address the court. Defendant made "no response" to a direct question from the judge whether he wished to "say" anything.
Defendant's mother then gave a lengthy statement regarding defendant's mental health issues. She requested that defendant "spend a good portion of his time in a mental health facility . . . ." Without any further statement from defense counsel or the prosecutor, the judge then immediately imposed sentence, finding aggravating sentencing factors two, three, eight, nine and thirteen applied to some, or all, of the offenses. See N.J.S.A. 2C:44-1a (2) (gravity and seriousness of harm inflicted); (3) (the risk of re-offense); (8) (the offense was committed against a law enforcement officer); (9) (the need to deter); and (13) (the use of a stolen motor vehicle in flight). The judge found no mitigating factors. See N.J.S.A. 2C:44-1b. In accordance with the plea agreement, defendant was sentenced to an aggregate term of imprisonment of fourteen years subject to NERA.
Contrary to defendant's assertion in his appellate brief, defense counsel did not excuse herself from the proceedings. It was only after sentence was imposed, and the judge indicated he was citing defendant for contempt, did counsel ask to be excused.
Defendant's appeal was limited to the excessiveness of his sentence. In particular, appellate counsel argued that the trial judge erred by not finding mitigating sentencing factor four based on defendant's "severe psychological problems." See N.J.S.A. 2C:44-1b(4) ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). He also contended mitigating factor seven applied, since defendant had no prior criminal convictions. See N.J.S.A. 2C:44-1b(7) ("defendant has no history of prior delinquency or criminal activity"). We affirmed the sentences, but remanded to enter an amended judgment of conviction vacating the NERA component that was inapplicable to the eluding charge. State v. Powell, No. A-3743-07 (App. Div. Apr. 30, 2009). Defendant's petition for certification was denied. State v. Powell, 201 N.J. 145 (2009).
On or about March 23, 2010, defendant filed a pro se petition for PCR. In a letter-brief, defendant asserted that his sentence was excessive and should have been "below what was formerly known as the presumptive"; trial counsel provided ineffective assistance for failing to raise a diminished capacity defense and failing to file a pre-trial motion to dismiss certain counts of the indictment[s]; and appellate counsel provided ineffective assistance for failing to raise "substantive" issues on appeal. PCR counsel was appointed and further argued that trial counsel failed to utilize available mental health reports to argue for mitigation of sentence.
A PCR hearing took place on June 16, 2011, before a judge who was not the trial judge. On June 21, the judge denied defendant's petition, filing a comprehensive written decision that accompanied the order. This appeal followed.
Before us, defendant raises the following points:
POINT I: THE PCR COURT ERRED BY NOT ORDERING THE RESENTENCING OF [DEFENDANT], BECAUSE HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING STAGE OF THE CRIMINAL PROCEEDING.
POINT II: [DEFENDANT] WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL DUE TO COUNSEL'S FAILURE TO ALLEGE THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING [DEFENDANT'S] RIGHT TO ALLOCUTION AND THEN NOT SPEAKING AT SENTENCING ON [DEFENDANT'S] BEHALF.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
In his extensive written opinion, the PCR judge rejected any claim that mitigating sentencing factors two or four applied. See N.J.S.A. 2C:44-1b (2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"); N.J.S.A. 2C:44-1b(4) ("substantial grounds tending to excuse or justify the defendant's conduct"). Therefore, even if argued, they would have been rejected.
In his first point, defendant argues trial counsel provided ineffective assistance because she "made no argument at all" regarding the sentence to be imposed. He contends we must, pursuant to State v. Hess, 207 N.J. 123 (2011), remand the matter for a resentencing hearing.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting
Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). "To meet prong one, a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." Hess, supra, 207 N.J. at 147 (quoting Strickland, supra, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95 (quotation and citations omitted)). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Hess was decided by the Supreme Court shortly after the PCR hearing was held in this case and the judge issued his written decision. In Hess, supra, 207 N.J. at 129, on appeal from our affirmance of the denial of the defendant's PCR petition, the Court noted:
Under the terms of the [plea] agreement, [the] defendant was required to acknowledge that she would receive a thirty-year prison sentence, subject to a parole disqualifier (twenty-five-and-one-half years); to concede that the aggravating factors outweighed the mitigating factors; and to agree that neither she nor her attorney would seek a lesser term of imprisonment.
The Court concluded such a restriction on the ability to present mitigating sentencing factors ran afoul of prior precedent, including our decision in State v. Briggs, 349 N.J.Super. 496 (App. Div. 2002). Hess, supra, 207 N.J.
In Briggs, supra, 349 N.J.Super. at 498, pursuant to the terms of the plea bargain, defense counsel was prohibited from asking for a sentence less than the agreed upon maximum term. Although defense counsel argued application of certain mitigating sentencing factors, id. at 500, we concluded that, "[T]here can be no doubt that a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement. Sentences imposed upon defendants who have engaged in plea agreements must still comport with the strictures of the Criminal Code and be supported by competent credible evidence." Id. at 501.
Additionally, in Hess, supra, 207 N.J. at 129, the Court found that trial "counsel offered no mitigating evidence in support of a lesser sentence, " despite "evidence in his possession suggesting that defendant suffered from Battered Women's Syndrome when she killed her husband." The Court held:
[The] defendant was denied her constitutional right to the effective assistance of counsel at sentencing. Defense counsel deprived the court of mitigating evidence that was necessary for a meaningful sentencing hearing. That alone so undermined the adversarial process that counsel no longer was serving in the role of an advocate as envisioned in our criminal justice system.
In this case, unlike Hess and Briggs, the plea agreement itself did not place strictures upon defense counsel marshalling evidence supporting mitigating sentencing factors; nor did the plea bargain compel acceptance of the bargained-for sentence. In short, unlike those cases, no "restrictive plea agreement helped to fuel the breakdown of the adversarial process . . . ." Hess, supra, 207 N.J. at 154. Nevertheless, the Hess Court noted, "the failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel -- even within the confines of the plea agreement." Ibid.
Assuming arguendo that trial counsel's failure to present any sentencing argument in this case meets the first prong of the Strickland/Fritz test, defendant must establish prejudice as a result of that deficiency. In Hess, the Court noted extensive evidence that the defendant suffered from Battered Women's Syndrome, including an expert report to that effect; yet, "[d]efense counsel provided no such report to the sentencing judge, nor did he offer the seemingly obvious argument, based on the information available to him, that his client was a battered woman." Id. at 148-49. The Court concluded that the defendant had met the second prong of the Strickland/Fritz test: "Based on both the evidence and argument withheld from the sentencing court, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 154 (citations and quotations omitted).
In this case, defendant's argument is essentially limited to the failure by trial counsel to argue for application of mitigating sentencing factors two, four and seven. Defendant concedes that we rejected the argument that failure to apply factors four and seven resulted in an excessive sentence.
More importantly, unlike in Hess where critical mitigating evidence was never presented to the judge, in this case, the sentencing judge had all the psychiatric expert reports which defendant now contends would have buttressed an argument that mitigating factors two and four applied. The sentencing judge specifically referenced having all of defendant's medical reports, defendant's mother discussed them during her colloquy with the judge and the reports are contained in defendant's pre-sentence investigation report. The PCR judge specifically noted the reports did not establish an insanity defense and did not support the finding of any mitigating sentencing factors.
Further, an argument that mitigating factor seven should apply also would have failed, since defendant had a prior juvenile record and prior arrest in Virginia. In short, unlike the scenario in Hess, where critical evidence was never supplied and no argument was made by trial counsel, in this case, all the evidence defendant now relies upon to support his claim of ineffective assistance was before the sentencing judge. Under these circumstances, we cannot conclude that defendant has satisfied the second prong of the Strickland/Fritz test.
Regarding the claim made in defendant's second point, i.e., that PCR counsel provided ineffective assistance, the Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant no argument need be made on that point Stated differently the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims either by listing them or incorporating them by reference so that the judge may consider them
State v. Webster
187 N.J. 254
"The remedy for counsel's failure to meet the[se] requirements is a new PCR proceeding"
State v Hicks 411 N.J.Super. 370 376 (App Div 2010) (citing State v Rue 175 N.J. 1 4 (2002))
Defendant asserts that PCR counsel provided ineffective assistance by failing to allege trial counsel was ineffective "for not requesting [defendant's] right to allocution " The argument lacks sufficient merit to warrant extensive discussion R 2:11-3(e)(2) As the transcript reveals defendant was accorded the right to allocute at his sentence but refused to do so