Opinion
DOCKET NO. A-2075-11T2
03-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER M. CHENEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-11-1276.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a June 27, 2011 order denying his petition for post-conviction relief (PCR). He contends that his trial counsel was ineffective by failing to represent him vigorously at sentencing. We affirm.
Defendant pled guilty to second-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and third-degree burglary, N.J.S.A. 2C:18-2a(1). Defendant was extended term eligible pursuant to the Graves Act, N.J.S.A. 2C:43-6c. The judge sentenced defendant in accordance with the plea agreement and imposed a twelve-year sentence on the second-degree burglary conviction subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, concurrent to two five-year prison terms with two-and-a-half years of parole ineligibility on the remaining convictions, as well as the mandatory fines and penalties.
These convictions stemmed from two separate indictments (No. 08-11-1276 and No. 08-12-1347) and one accusation (No. 09-03-0317). As part of the plea agreement, the State dismissed the remaining charges to No. 08-11-1276, including: third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Defendant did not file a direct appeal. He filed his petition for PCR and generally contended that his trial counsel was ineffective by failing to prepare for his sentencing proceeding. The parties waived oral argument, and on July 27, 2011, Judge Michael J. Haas issued a thirteen-page written opinion denying the PCR petition. Although Judge Haas denied the petition procedurally, he considered defendant's contentions on the merits and rejected them. The judge stated that
[T]hese sentencing issues are the exact type of claims that could have, and should have, been raised in a direct appeal to the Appellate Division. [S]entencing arguments, such as raised by defendant here, are "not appropriate ground[s] for [PCR]." State v. Acevedo, 205 N.J. 4[0] (2011). "To permit post-conviction review of the adequacy of the sentencing judge's findings and conclusions would open the gates to an avalanche of grievances, often long after the sentence was imposed. In light of the availability of relief by way of direct appeal, we perceive no need to make [PCR] an open sesame for the wholesale review of sentences." State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988).This appeal followed.
Under these circumstances, it would not constitute a "fundamental injustice" if defendant's petition was barred under . . . [Rule] 3:22-4. Again, he had the opportunity to raise these claims on direct appeal. Finally, . . . none of defendant's constitutional rights were violated. He did not receive ineffective assistance from his trial counsel.
. . . .
Here, defendant argues that his trial counsel was ineffective because she did not assert that additional mitigating factors should be applied. However, he does not specify what mitigating factors could, or should, have been argued. . . . Defendant's trial counsel discussed defendant's drug problem [with the plea and sentencing judge], noted his physical issues, and highlighted defendant's goal of making use of his time in prison to rehabilitate himself. Clearly, counsel was prepared and
provided the sentencing judge with specific information about her client.
Defendant's trial counsel did not submit a sentencing memo, but a trial memo was not requested by the sentencing judge. More importantly, defendant does not specify what issue should have been addressed in a sentencing memo that his trial counsel did not address in her oral comments to the [c]ourt at the time of the plea and at the time of sentencing.
Finally, defendant argues that his trial counsel should have asked for a reduced sentence, even though he voluntarily agreed to the sentence he received. Defendant's trial counsel did a remarkable job of getting the plea agreement she did on defendant's behalf. He was extended term eligible due to his prior conviction for aggravated assault with a firearm. He had broken into a home and removed several shotguns and rifles. The minimum term for this second-degree offense would have been ten years. With his substantial criminal record, he would have received a much longer sentence if he was not successful at trial. The sentences for the drug and burglary charges to which defendant pled would almost certainly have been consecutive, rather than concurrent, if defendant was not successful at trial. See State v. Yarbough, 100 N.J. 627, 643-44 (1985). The offenses were completely independent of each other, involved different and unrelated victims, and were committed at different times. Defendant's attorney was able to secure a much better result for defendant through this voluntary, negotiated plea.
On appeal, defendant raises the following points:
POINT I
THE INEFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS AND RENDERED DEFENDANT'S PLEA ALLOCUTION AND SENTENCING AS FUNDAMENTALLY UNRELIABLE AND UNFAIR.
A. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSELPOINT II
B. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL
DEFENDANT'S SENTENCE WAS EXCESSIVE AND UNFAIR AND, THEREFORE, SHOULD BE VACATED.
POINT III
THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY DEFENDANT.
Defendant generally contends that PCR counsel "did not raise material arguments that [PCR] counsel should have gleaned from the record." Defendant filed his pro se petition for PCR and his PCR counsel filed a supplemental petition and a brief. The petition and supplemental petition for PCR were not produced on appeal. Defendant has not pointed to any credible argument that PCR counsel failed to make. On this record, therefore, we see no merit to defendant's contention that PCR counsel was ineffective. R. 2:11-3(e)(2).
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We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Haas in his thorough decision of June 27, 2011. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which his counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION