September 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RASHAD BENBOW, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-3330.
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 (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Alvarez and Maven.
Defendant Rashad Benbow appeals the March 22, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Defendant entered pleas of guilty pursuant to an agreement with the State resolving an indictment that charged him with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count four). He entered a guilty plea to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (c) (count one) and an amended count three, third-degree theft, N.J.S.A. 2C:20-2(b)(2)(d). On the aggravated manslaughter, the State agreed to recommend the imposition of a custodial term not to exceed twenty-two years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Additionally, the maximum sentence that could be imposed on the theft count was five years concurrent.
When defendant established his factual basis, the following exchange took place:
THE COURT: You understand that under the No Early Release Act you're not eligible for parole until you've completed 85 percent of your sentence? And under the plea recommendation in this case of 22 years, 85 percent -- and this is an approximate number only -- would be 18 years, eight months, and 15 days?
THE DEFENDANT: Yes, sir.
THE COURT: Other than what has been discussed with regard to your recommended --additionally, under the No Early Release Act, when you are released from custody you'll be on parole for a period of five years. And should you violate that parole, they could send you back to State prison for an unexpired period of the five years, even if it exceeded your original sentence; do you understand that?
THE DEFENDANT: Yes, I do.
Defendant completed the requisite "Supplemental Plea Form for No Early Release Act (NERA) Cases, " which explained that he would be required to serve eighty-five percent of his sentence, and serve a five-year term of parole supervision upon his release.
In conformity with the agreement, defendant was sentenced to twenty-two years, subject to NERA, and a concurrent five years. Defendant's sentence was affirmed by the excessive sentence panel. See R. 2:9-11.
At oral argument before the excessive sentence panel, counsel contended that the prosecutor's reference, during defendant's sentence hearing, to the fact that defendant took the victim's phone was unduly prejudicial and should not have been "singled out" in support of an aggravating factor. He also contended that the reference in defendant's "Uniform Defendant Intake" report to defendant's drug and mental health history should have warranted a finding by the court that mitigating factor four, substantial grounds tending to excuse or justify conduct, N.J.S.A. 2C:44-1(b)(4), applied. He also argued that the trial judge's failure to address mitigating factor five, that the victim "induced or facilitated" the crime, N.J.S.A. 2C:44-1(b)(5), was prejudicial error in the sentencing calculus.
Briefly summarized, defendant's charges arose from his killing of a sixty-eight-year-old victim, Willie Taylor. Taylor employed defendant as a handyman, and on May 7, 2007, told him "I don't have to keep hiring you. You're messing up, and you can't do none of the stuff I want you to do." When defendant threatened the victim, Taylor told him to "get out, " and defendant responded "make me." Taylor pushed defendant, who slipped and fell. Defendant then repeatedly struck Taylor in the head and body, inflicting mortal wounds, leaving Taylor unconscious and bleeding. Defendant drove away in Taylor's Jeep, taking his credit card, which he used at a Pathmark and a Burger King, and his cell phone, which he unsuccessfully tried to sell.
At the sentencing hearing on September 15, 2009, defense counsel did not raise any mitigating factors. The sentencing judge found aggravating factors three, the risk defendant would reoffend, N.J.S.A. 2C:44-1(a)(3); six, the extent of his prior criminal history, N.J.S.A. 2C:44-1(a)(6); nine, the need to deter, N.J.S.A. 2C:44-1(a)(9); and twelve, that defendant inflicted harm on a victim of advanced age, N.J.S.A. 2C:44-1(a)(12); he found no mitigating factors. The judge observed that defendant had ten complaints filed against him as a juvenile, resulting in three adjudications, and fourteen arrests as an adult. This offense was his third indictable conviction. At the time the homicide occurred, defendant was thirty-two years old.
PCR counsel, in addition to renewing the arguments made during the excessive sentence presentation, also argued that trial counsel had not adequately explained to defendant the NERA consequences of the agreement. Further, counsel argued that the explanation made by the judge who accepted defendant's guilty plea did not correct the inadequate representation; specifically, defendant now claimed that, had he understood that he would not be eligible for parole until he had served eighty-five percent of his time, he would not have entered a guilty plea.
The PCR judge denied the petition, concluding that the record demonstrated, from both defendant's plea form, as well as the courtroom colloquy, that, when the plea was entered, defendant understood the full ramifications of a NERA sentence. The judge also found that, although defendant may have believed that trial counsel would be arguing for fewer years of imprisonment at the time of sentencing, he had agreed to the sentence that was imposed. Defendant, therefore, failed to establish either prong of the Strickland test.
The court also stated that the record did not support the award of any mitigating factors. Therefore even if counsel was ineffective for failing to argue mitigating factors, there was no prejudice, as had such arguments been made they would have failed. Additionally, the court relied upon Rule 3:22-4, which bars any argument in support of PCR previously ruled upon, such as defendant's claims regarding mitigating factors, which had been addressed on appeal.
The court noted that, although in his pro se brief defendant asserted that his trial attorney did not investigate the case or rely on his statements, he did not identify facts that would have been revealed by additional investigation. Thus that claim was rejected. Since defendant had not made out a prima facie case for relief, defendant was not granted an evidentiary hearing.
On appeal, defendant argues:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE CODE OF CRIMINAL JUSTICE TO A SENTENCING HEARING IN WHICH ALL APPLICABLE MITIGATING FACTORS ARE DELINEATED WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY THE PREPONDERANCE OF THE EVIDENCE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF
(A) TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADEQUATELY EXPLAIN TO THE DEFENDANT THE NERA CONSEQUENCES OF HIS PLEA.
We find no merit to these arguments. R. 2:11-3(e)(2). In this case, the record simply does not support any of defendant's contentions of error.
To the contrary, the record establishes that when the plea was entered, defendant was fully advised of the NERA consequences. The record does not include facts that would support any mitigating factors, evidenced by defendant's own statements, when he entered his guilty plea, that the victim's conduct neither excused nor justified the commission of the crime. Taylor's demand that defendant leave his home, even if accompanied by a push, was made after defendant threatened him. Similarly, defendant's statements to the probation officer who prepared the presentence report that he had abused drugs and had a mental health history alone were not sufficient to establish any mitigating factor.
Furthermore, the PCR court adequately considered defendant's pro se arguments. We too are satisfied that they lack merit, and, in fact, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).