October 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SEAN COBB, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 07-01-0182, 07-01-0183, 07-01-0203, 07-10-1721, 07-11-1807, 07-12-1991; 08-04-0580, 08-05-0660.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Nicholas D. Norcia, Assistant Prosecutor, on the brief).
Before Judges Hayden and Rothstadt.
Defendant, Sean Cobb, appeals from the Law Division's February 10, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He presents the following points for our review:
THE PCR COURT ERRED IN RULING THAT MR. COBB'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING WAS PROCEDURALLY BARRED.
THE PCR COURT ERRED IN DENYING MR. COBB AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.
After considering the defendant's arguments, we now affirm.
Five separate indictments originally charged defendant with approximately thirty counts of manufacturing, possession, and possession with intent to distribute controlled dangerous substances ("CDS"). On June 9, 2008, defendant pled guilty to five counts of violating N.J.S.A. 2C:35-5a(1), possession of CDS with intent to distribute, in exchange for the prosecutor's agreement that the rest of the charges be dismissed, and that the prosecutor would not argue for a term of imprisonment in excess of fourteen years, including a limited parole ineligibility period of four and one half years. The terms of defendant's plea agreement were incorporated into a written agreement which defendant signed prior to pleading guilty.
During the plea hearing, the judge explained to defendant that it was "written in stone" that he would be sentenced to at least nine years in prison with a four and one half year parole disqualifier, but that the maximum term could be up to fourteen years as stated in the plea agreement. Defendant acknowledged to the judge that he understood the mandatory minimum sentence he would receive, and the possibility of receiving up to the maximum as expressed in the plea agreement and by the court.
The court sentenced defendant on August 8, 2008. During the sentencing hearing, neither defense counsel nor defendant advised the court of any alleged cooperation between defendant and any law enforcement agency that would warrant the court's considering his willingness to cooperate with law enforcement authorities as a mitigating factor. N.J.S.A. 2C:44-1b(12). In fact, when asked if he had anything to say prior to sentencing, defendant only responded that he was asking "for the minimum sentence that you could possibly give me."
Defendant later appealed his sentence to this court's excessive sentencing panel pursuant to Rule 2:9-11. We determined that defendant's sentence was not excessive and entered an order on November 17, 2009, affirming the sentencing court's decision. Approximately one year later, defendant filed his PCR application. As noted, the PCR court denied the petition for the two reasons stated above. This appeal followed.
When analyzing whether counsel for a convicted defendant provided ineffective assistance, the United States Supreme Court has held that a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. A prima facie claim also requires a "reasonable likelihood of succeeding under the test[.]" See State v. Goodwin, 173 N.J. 583, 596 (2002) (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). New Jersey adopted the Strickland test, concluding that the State Constitution entitles a criminal defendant "to the assistance of reasonably competent counsel[.]" State v. Fritz, 105 N.J. 42, 58 (1987).
In order to prove the first prong, that counsel's performance was deficient, a defendant must establish that counsel's errors were so serious that in effect the defendant was deprived of his right to counsel under the Sixth Amendment to the United States Constitution. Goodwin, supra, 173 N.J. at 596. "Bald assertions" alone cannot sustain a PCR application. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant's ineffective assistance of counsel allegation concerns his Sixth Amendment right to counsel, which was not raised or considered at the excessive sentencing appeal. Ordinarily, ineffective assistance of counsel claims are not addressed on direct appeal because there is insufficient evidence in the record to determine whether counsel's performance was deficient. State v. Preciose, 129 N.J. 451, 460 (1992). Such claims generally involve facts outside the record, often requiring an evidentiary hearing. Ibid. Thus, we agree with defendant that his ineffective assistance of counsel claim is not procedurally barred here.
We disagree with defendant, however, that he was entitled to an evidentiary hearing as to his PCR claim because his petition contained only "bald assertions" about his alleged cooperation with law enforcement and no proof that his sentencing counsel knew about his allegations. While defendant's application complained that his sentencing counsel failed to raise mitigating factor number twelve, "the willingness of defendant to cooperate with law enforcement authorities, " N.J.S.A. 2C:44-1b(12), he provided the PCR court with no proof that such cooperation ever existed.
In his petition, defendant stated that he "cooperated as a Confidential Informant for the Ocean County Prosecutor's Strike Force prior to his sentencing" which resulted in convictions of other defendants. According to defendant, the Ocean County Narcotics Strike Force verbally confirmed his cooperation; but the Ocean Country Prosecutor refused to confirm or deny his cooperation, citing among other things confidentiality. However, defendant never offered any proof of that confirmation.
Defendant also did not, for example, file any certification with details about any of his alleged activities, including the dates of his cooperation or the identities of any criminals that were arrested as a result of his cooperation, or the identities of any individuals in law enforcement with whom he cooperated. He also failed to include any statement indicating that his sentencing attorney was aware of his alleged cooperation and, despite that knowledge, did not raise the issue as a mitigating factor.
Without a certified statement as to the nature and extent of his alleged cooperation and confirmation that he informed his attorney of that cooperation, the PCR court properly denied defendant's petition. See Cummings, supra, 321 N.J.Super. at 170 ("[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications[.]"); cf. State v. Read, 397 N.J.Super. 598, 613 (App. Div.) (a mere confession should not qualify as cooperation with law enforcement "at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes"), certif. denied, 196 N.J. 85 (2008).
Under the second prong, a defendant must show that there is a reasonable probability that but for counsel's serious errors, the results of the proceedings would have been different. Goodwin, supra, 173 N.J. at 597. In this case, even if defendant provided the required supporting certifications, it does not appear likely that the sentencing judge would have imposed a different sentence, especially in light of the judge's comment that he was "convinced clearly that the aggravating factors substantially outweigh the mitigating or anything that could be said by way of mitigation." Despite that finding, the judge sentenced defendant in accordance with the very favorable plea agreement. It is unlikely he would have done anything else and defendant did not offer any evidence to the contrary.