NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-01-0024.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Haas.
Defendant Amos Burch appeals from the June 29, 2011 Law Division Order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On January 7, 2005, defendant pled guilty to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in exchange for the State's agreement to dismiss all other pending charges against him and to recommend a sentence of thirteen years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In accordance with this plea agreement, the trial judge sentenced defendant to a thirteen-year term, subject to NERA, with a five-year period of parole supervision upon release.
Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed. Defendant then filed a PCR petition, contending that trial counsel rendered ineffective assistance by: (1) failing to argue at sentencing for certain mitigating factors, and against the aggravating factors found by the judge; (2) neglecting to argue that defendant should be sentenced as if he had pled to a second-degree offense; and (3) failing to seek a reduced sentence based upon promises allegedly made to defendant by detectives at the time he confessed to the crime.
In a June 20, 2011 oral opinion, Judge Darrell M. Fineman denied the petition, concluding that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. The judge found that defendant was again arguing, as he did on direct appeal, that his sentence was excessive. Because we previously rejected defendant's excessive sentence arguments on direct appeal, and defendant could have raised his contentions at that time, the judge found that defendant's claims were barred by Rule 3:22-4.
Judge Fineman nevertheless considered defendant's contentions and found them to be without merit. He found that trial counsel effectively negotiated a favorable plea agreement for defendant, which was four years less than the State had originally offered and at "the low end" of the sentencing range. After examining the record, the judge also found, contrary to defendant's contention, that trial counsel had argued for mitigating factor four, N.J.S.A. 2C:44-1b(4), by raising defendant's "history of schizophrenia" at the sentencing hearing. While counsel raised no other mitigating factors, the sentencing judge nevertheless found that mitigating factors six, N.J.S.A. 2C:44-1b(6), and ten, N.J.S.A. 2C:44-1b(10), applied.
Judge Fineman rejected defendant's argument that his attorney should have argued for mitigating factors seven, eight and twelve. N.J.S.A. 2C:44-1b(7), (8), and (12). Defendant had a number of prior convictions and was on probation at the time he committed the offense for which he was sentenced. Defendant fled to North Carolina after the offense and "only cooperated with law enforcement after police brought him [back] to New Jersey." Thus, these mitigating factors were not applicable and Judge Fineman found that defendant's attorney was not ineffective for failing to raise them. Similarly, based on defendant's extensive prior record, Judge Fineman found that there was no basis for defendant's attorney to argue against aggravating factors three, six, and nine. N.J.S.A. 2C:44-1a(3), (6), and (9).
Because the aggravating factors clearly outweighed the mitigating factors, Judge Fineman concluded there was no basis to support an argument by trial counsel that defendant should have been sentenced, pursuant to N.J.S.A. 2C:44-1f(2), to a term appropriate for a crime one degree lower than that for which he was convicted. Finally, the judge noted that, in his taped confession, defendant stated that he had not been "threatened or promised anything in return for [his] statement." Therefore, there was nothing other than defendant's bald ...