Opinion
DOCKET NO. A-0555-13T3
03-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC COLCLOUGH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-1112. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, 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.
On September 12, 2011, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. Under the terms of the plea agreement, the State agreed to treat the conviction as a second-degree offense for the purpose of sentencing and recommend an eight-year sentence, subject to an eighty-five percent period of parole ineligibility. On October 28, 2011, defendant was sentenced to a term of six years, with an eighty-five percent period of parole ineligibility. Defendant did not file a direct appeal from his conviction and sentence.
Defendant filed a PCR petition on July 2, 2012, in which he stated that he "was under the impression" he would get the "lowest sentence" if he pled guilty. However, he did not say his attorney represented that he would get a sentence that was less than what was imposed if he pled guilty. Moreover, defendant stated that he pled guilty "to put this matter behind me and move on with my life." In his petition, defendant requested that his sentence be reduced to five years.
On July 10, 2012, defendant was assigned counsel and a brief was subsequently filed on his behalf. In the brief, counsel asserted plea counsel failed to inform defendant of the consequences of pleading guilty, and failed to zealously argue the applicability of mitigating factors eight, defendant's conduct is the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8), and nine, the character and attitude of defendant indicate he is unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9). PCR counsel also contended the sentencing court failed to adequately address the mitigating factors.
The PCR court rejected defendant's arguments and denied the relief sought in his petition by order dated May 16, 2013.
Defendant presents the following issues for our consideration in his appeal.
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE, INDEPENDENT OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE CODE OF CRIMINAL JUSTICE TO HAVE ALL MITIGATING FACTORS DELINEATED AT SENTENCING WAS VIOLATED.
POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO ACCURATELY INFORM DEFENDANT OF THE PENAL CONSEQUENCES OF HIS GUILTY PLEA WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
In his brief, defendant argues the sentencing court failed to properly weigh the aggravating and mitigating factors and, thus, he is entitled to a remand for re-sentencing. In addition, he claims plea counsel was ineffective for failing to accurately inform him of the penal consequences of pleading guilty because, as he had set forth in his pro se petition, he was under the impression he would get the "lowest sentence."
The claim the sentencing court failed to properly evaluate the aggravating and mitigating factors could have been but was not raised on a direct appeal. Consequently, this issue is not appropriately before us. R. 3:22-4(a).
As for the ineffective assistance claim, defendant did not make out a prima facie showing that plea counsel was ineffective under both prongs of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Those two prongs are that: (1) counsel made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Here, defendant has not set forth what plea counsel failed to convey about the consequences of pleading guilty or what information counsel imparted to defendant that was inaccurate. Defendant indicates he was under the impression he would receive the lowest sentence that could be imposed, but he does not claim this belief originated with plea counsel. Second, there is no evidence that but for his attorney's alleged error, defendant would not have pled guilty but would have proceeded to trial.
As defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test, the PCR court correctly determined an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION