NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...