Opinion
DOCKET NO. A-0659-13T2
03-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAQUAN B. BUTLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-06-1035. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant pled guilty to first-degree robbery pursuant to a plea agreement in which the State agreed to dismiss other charges and recommend the minimum sentence of ten years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), and a five-year period of parole supervision. The charge arose from defendant's attempted robbery of a Taco Bell restaurant where he was employed. No one was injured and no money was taken.
At sentencing, defendant's attorney asked that, in evaluating the sentencing factors, the court consider that the mitigating factors substantially outweigh the aggravating factors, justifying a sentence in the second-degree range. Counsel argued defendant had no prior criminal adjudication; he provided financial support for his child; he cooperated with the State and was willing to testify against his co-defendant and no one was hurt at the restaurant.
The trial judge termed counsel's argument "very compelling." He found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and mitigating factors eleven and twelve, N.J.S.A. 2C:44-1(b)(11) and (12). The judge imposed a sentence within the second-degree range, nine years subject to NERA, and a five-year period of parole supervision. However, the court failed to make the specific findings required to impose a sentence one degree lower than the degree of defendant's conviction. See N.J.S.A. 2C:44-1(f)(2).
Defendant did not file a direct appeal. In his pro se PCR petition, he challenged his sentence as excessive, stating certain factual assumptions were incorrect, that he was under the influence of substances at the time of the offense and that he was trying to get his sentence lowered to five years subject to NERA with a three-year period of parole supervision. In addition to incorporating the arguments defendant raised pro se, the brief filed on his behalf contended he was denied the effective assistance of counsel at sentencing because his attorney failed to argue for the application of mitigating factors three and four, N.J.S.A. 2C:44-1(b)(3) and (4), and against the application of the aggravating factors found by the court.
After defendant filed his PCR petition, the State moved to correct defendant's sentence as illegal. The PCR judge denied defendant's petition and granted the State's motion. A sentence of ten years subject to NERA with a five-year period of parole supervision was imposed. In a written opinion, the judge found defendant's arguments regarding his counsel's performance at sentencing were procedurally barred pursuant to Rule 3:22-4. The judge found further that defense counsel was effective because he persuasively argued for mitigating factors eleven and twelve, properly argued against aggravating factors, and obtained a sentence below the State's recommendation. The judge also observed that defendant's self-induced intoxication could not have been argued as a basis for mitigating factors three and four.
Defendant presents the following issues for our consideration in his appeal.
POINT I
THE PCR COURT ERRED WHEN IT DETERMINED THAT BUTLER WAS PROCEDURALLY BARRED FROM RAISING THE ARGUMENTS CONTAINED IN HIS PETITION FOR POST-CONVICTION RELIEF.
POINT II
THE PCR COURT ERRED IN DENYING RUTLEDGE [sic] AN EVIDENTIARY HEARING EVEN THOUGH BUTLER PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT III
BUTLER INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL PETITION FOR POST-CONVICTION RELIEF.
We are not persuaded by any of these arguments.
The argument that mitigating factors three and four should have been found and that aggravating factors three, six and nine did not apply could have been raised as plain error in a direct appeal and are therefore procedurally barred. R. 3:22-4(a). Moreover, because these arguments do not relate to the legality of the sentence imposed, they are not cognizable grounds for post-conviction relief. State v. Acevedo, 205 N.J. 40, 46-47 (2011); State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION