Opinion
DOCKET NO. A-5057-10T3 DOCKET NO. A-1705-11T2
02-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. COREY MORRIS, Defendant-Appellant.
Jennifer L. Gottschalk argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Richard Sparaco, Designated Counsel, on the brief). Al Garcia, Assistant Prosecutor in A-5057-10, and Michael A. Nardelli, Assistant Prosecutor in A-1705-11, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Garcia, on the brief; Mr. Nardelli, of counsel and on the brief). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Ostrer and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-10-1464 and 02-12-1658.
Jennifer L. Gottschalk argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Richard Sparaco, Designated Counsel, on the brief).
Al Garcia, Assistant Prosecutor in A-5057-10, and Michael A. Nardelli, Assistant Prosecutor in A-1705-11, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Garcia, on the brief; Mr. Nardelli, of counsel and on the brief).
Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Corey Morris appeals from two orders, both dated May 13, 2011, denying his petitions for post-conviction relief (PCR) arising from two separate robbery convictions (Indictment No. 02-10-1464 and Indictment No. 02-12-1658). In A-1705-11, he amended his notice of appeal to include a November 28, 2011 amended judgment of conviction, reflecting his re-sentencing on Indictment No. 02-12-1658. We consolidated the appeals for purposes of this opinion. We affirm on both appeals, substantially for the reasons stated by Judge Edward M. Neafsey, in his oral opinion issued on May 13, 2011, and for the reasons stated by Judge Thomas Brown at the re-sentencing hearing on November 4, 2011.
The PCR court heard oral argument on both petitions on May 13, 2011, but issued a separate order on each petition. While denying both petitions, the judge reserved decision on a separate sentencing issue concerning the imposition of a second extended term on Indictment No. 02-12-1658. On August 17, 2011, he ordered that defendant be re-sentenced on that indictment. The parties provided us with the August 17, 2011 order, but did not provide us with the transcript of the judge's statement of reasons.
I.
We begin by addressing the appeal in A-5057-10, which corresponds to Indictment No. 02-10-1464. In this case, defendant was convicted of robbing a sixty-year-old man named Joseph Spivak on July 11, 2002. Defendant was tried and convicted in October 2003. The trial evidence can be summarized briefly. A taxi cab driver witnessed the robbery as it was occurring. The cab driver followed defendant until he entered a car. At that point the cab driver called in the car's description and license plate number to the police, followed the vehicle until he saw the police car arriving, and then blocked in the vehicle with his taxi to prevent defendant's escape. The police immediately arrested defendant and a companion, Cynthia Bazil, who was driving the vehicle. The taxi driver identified defendant to the police, and also identified him at trial as the robber. Spivak likewise identified defendant as the robber, both shortly after the arrest and at trial. After waiving his Miranda rights, defendant confessed, and his confession was introduced at his trial. Bazil also testified against him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant insisted on wearing jail garb at his trial. He was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and on December 12, 2003, he was sentenced as a persistent offender to a sixteen-year extended prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On his direct appeal, defendant raised the following issues:
POINT I - DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS INVOLUNTARY CONFESSIONS VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
POINT II - DEFENDANT'S SENTENCE MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. (Not Raised Below)
He raised these additional arguments in a pro se brief:
POINT I - THE COURT COMMITTED TRIAL ERRORS THAT VIOLATED APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL THUS REQUIR[ING] THE CONVICTION TO BE REVERSE[D].We affirmed his conviction, but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Morris, Docket No. A-3961-03 (App. Div. Aug. 23, 2005). On remand, the trial court imposed the same sentence on September 8, 2006.
A. The Court Erred By Not [Conducting] Voir Dire, Giv[ing] Instruction And Charging The Jurors To Not Form An Opinion Of Guilt Based On The Prison's Clothes The Appellant Wore At Trial.
B. The Court's Charge And The Verdict Sheet Did Not Include What Constitutes A Violent Crime [And] Thus Violated The Appellant's Right To A Fair Trial.
Defendant did not appeal from that sentence. However, he filed a PCR petition, which was supplemented by his assigned PCR attorney. In his PCR petition and supplemental brief, defendant claimed, on multiple bases, that his trial attorney had rendered ineffective assistance of counsel. In a certification accompanying the petition, defendant addressed only one of those issues. He attested that his trial counsel failed to discuss with him the court's offer to instruct the jury that neither defendant's prison attire nor his Public Defender representation should be considered as indicia of his guilt. At the trial, defense counsel waived those instructions, reasoning to the judge that they would merely call additional attention to the issues. In his certification, defendant contended that if his attorney had discussed the matter with him, he would have insisted that the judge give the proposed instructions.
After hearing oral argument from counsel, and permitting defendant to present argument, Judge Neafsey placed a forty-four page oral opinion on the record, addressing each of defendant's PCR contentions. We will not repeat his opinion here. However, among other arguments, he rejected defendant's assertion that his counsel did not advise him of "the maximum consecutive sentences that he was exposed to" if convicted. Quoting the pre-trial and trial transcripts, Judge Neafsey found that defendant's trial counsel and the trial judge had both advised defendant that he faced decades of prison time in this case and in the other pending robbery indictment, and that he could avoid that risk by taking the State's offer of concurrent five-year terms to resolve both cases. Defendant repeatedly refused the plea offer and insisted on going to trial. Judge Neafsey found that further advice on the subject would have been futile because defendant was determined to go to trial.
Judge Neafsey found that trial counsel was not ineffective in failing to ask for a Wade hearing, because there was no evidence that the witnesses' identifications were the result of suggestive police procedures. He also found that trial counsel vigorously cross-examined Bazil, and that the prosecutor brought out her prior criminal record on direct examination. He found that the trial court did not improperly deny defendant's motion for an acquittal, because the evidence of his guilt was overwhelming.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Judge Neafsey found that defendant rejected the trial judge's offer to provide him with civilian clothing and insisted on wearing jail garb. Judge Neafsey found that trial counsel's decision not to request a jury instruction on the jail garb was sensible, since, as the attorney noted, the outfit was tan and the jurors might not realize it was a jail uniform. Had the trial judge given an instruction, it would have drawn their attention to defendant's clothing. Judge Neafsey likewise found that defense counsel exercised reasonable judgment in declining a jury instruction concerning the fact that defendant was represented by a Public Defender.
Judge Neafsey further concluded that trial counsel was not ineffective in failing to object to the State's request to compare defendant's height to the victim's height. He concluded that the comparison was relevant to show that the victim accurately recalled that the robber was taller than he was. Hence, an objection, even if made, would have been overruled. He found that defendant's speedy trial motion was properly denied, and therefore, appellate counsel was not ineffective in failing to raise the issue on appeal. Judge Neafsey also found that on January 31, 2003, the trial judge thoroughly questioned defendant on his request to represent himself and properly denied that application.
On this appeal, defendant raises the following arguments:
POINT I - THE DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF WHERE TRIAL COUNSEL FAILED TO EXPLAIN TO HIM THE FULL PUNITIVE CONSEQUENCES OF REFUSING THE PLEA OFFER SHOULD THE CASE RESULT IN TRIAL AND CONVICTION.
POINT II - TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OF THE THREE-YEAR PAROLE SUPERVISION REQUIREMENT PURSUANT TO THE NO EARLY RELEASE ACT ON INDICTMENT NUMBER 02-10-1464 AND INDICTMENT NUMBER 02-12-1658 WHICH IN THE AGGREGATE AMOUNTED TO SIX YEARS.
POINT III - TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE'S REQUEST FOR A COMPARISON OF DEFENDANT'S HEIGHT WITH THAT OF THE VICTIM'S.
POINT IV - TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO REQUEST THAT THE COURT CHARGE THE JURY TO NOT FORM AN OPINION OF GUILT DUE TO THE REPRESENTATION OF THE DEFENDANT BY THE OFFICE OF THE PUBLIC DEFENDER.
POINT V - TRIAL COUNSEL FAILED TO REQUEST THAT THE COURT CHARGE THE JURY TO NOT FORM AN OPINION OF GUILT DUE TO THE PRISON GARB WORN BY THE DEFENDANT.
POINT VI - TRIAL COUNSEL FAILED TO PROVIDE THE COURT WITH A SUPPLEMENTAL LIST OF VOIR DIRE QUESTIONS REGARDING THE USE OF CDS BY THE DEFENDANT.
POINT VII - TRIAL COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO IMPEACH THE CREDIBILITY OF WITNESS BAZIL BASED UPON HER CRIMINAL RECORD.
POINT VIII - APPELLATE COUNSEL FAILED TO ARGUE THE TRIAL COURT'S ERROR IN DENYING DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.
POINT IX - BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE DEFENDANT WAS PREJUDICED THEREBY, THE COURT SHOULD HAVE GRANTED HIS PETITION FOR POST-CONVICTION RELIEF; IN THE ALTERNATIVE, BECAUSE THE DEFENDANT PRESENTED PRIMA FACIE
EVIDENCE THAT HE HAD BEEN DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING.
POINT X - THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS ASSERTION THAT DEFENSE COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO FILE A WADE MOTION TO EXCLUDE EVIDENCE OF THE OUT OF COURT IDENTIFICATION.
POINT XI - POST-CONVICTION RELIEF WAS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGH X.
In a supplemental pro se brief, defendant raises these additional arguments:
POINT I - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I [¶] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PCR COURT'S REFUSAL TO HOLD A POST-CONVICTION RELIEF HEARING TO ADJUDICATE THE DEFENDANT'S CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Appellate Counsel Rendered Ineffective Assistance Of Counsel By Failing To Order The Pre-Trial Hearing Transcript To Decide Pro Se Self-Representation Proceedings And Counsel Failed To Raise The Error On Direct Appeal. It Was An Error For The Court To Not Allow The Defendant To Represent Himself.
B. Trial Counsel Was Ineffective For Not Presenting Defendant With All The Material Information He Needed In Making His Decision To Testify Or Not Testify, I.E., Counsel Failed To Advise Defendant Of His Right To Testify And Call Him As A Witness At The Pre-Trial Miranda Hearing Was Not A
Meaningful Decision Made By Him Not To Testify.
C. Trial Counsel Was Ineffective For Failing To Subpoena A Crucial Defense Witness, Police Officer Lieutenant Joseph G. Valdona.
D. Trial Counsel Failed To Challenge N.J.S.A. 2B:12-21(b) Regarding The Administration Of The Oath.
E. Trial Counsel Failed To Suppress The Defendant's Statement As Involuntary Due To The Fact That The Police Promised To Release Him On ROR Bail. (Not Raised Below)
POINT II - THE PROSECUTOR ENGAGED IN MISCONDUCT.
POINT III - THE PROCEDURAL BAR TO RELIEF UNDER RULE 3:22-4 SHOULD NOT APPLY TO APPELLANT'S CLAIM UNDER POINT II.
Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comment.
After reading the trial transcript, we agree with Judge Neafsey that the evidence of defendant's guilt was overwhelming. Moreover, most of defendant's PCR contentions are attempts to present, in the guise of ineffective assistance of counsel, arguments that are barred by Rule 3:22-4 or Rule 3:22-5, because they either could have been raised on direct appeal or were raised on appeal and rejected. Nonetheless, Judge Neafsey carefully considered, and properly rejected, defendant's arguments on the merits. We find no basis to disturb his well-reasoned decision and we affirm the denial of defendant's PCR petition.
II.
We next address defendant's appeal in Docket No. A-1705-11, which corresponds to Indictment No. 02-12-1648. This case arose from the robbery of a seventy-year-old disabled victim, Andrew Keresztury, on April 12, 2002. As in the companion case, the proofs against defendant were overwhelming.
At the trial, which took place in March 2004, Keresztury testified that the robber assaulted him and stole a black fanny pack. The police recovered the pack when they arrested defendant, and Keresztury identified the pack for the jury at the trial. A passing motorist, who witnessed the robbery, testified that he yelled at the robber to leave the victim alone, and the assailant ran away. However, upon driving home, this eyewitness saw the robber enter a house next door to the witness's home. The eyewitness then told the police, who had been chasing defendant, where to find the robber. A few moments later, the eyewitness saw the police bringing defendant out of the house.
The State also presented evidence from a police officer who saw the robbery as it occurred, and chased defendant until he lost sight of him. The officer testified that the civilian eyewitness then told him that the defendant had entered a nearby house and, on entering that house with his partner, the officer found defendant and arrested him. The partner testified that he recovered the victim's fanny pack in the room where defendant was arrested. The owner of the house where defendant was arrested testified that she did not know him and he did not have her permission to enter the premises.
In his trial testimony, defendant denied any involvement in the robbery. He claimed he was a drug dealer and he happened to be in the vicinity of the robbery because it was a high drug sale area, and he intended to sell marijuana there. Evidently, the jury was unimpressed with that testimony.
Defendant was convicted of second-degree robbery, theft from the person, resisting arrest, and criminal trespass. After merger, he was sentenced to an extended term of twenty years, subject to NERA, on the robbery conviction, consecutive to the extended sentence previously imposed on the robbery conviction in Indictment No. 02-10-1464. He received lesser, concurrent terms for trespass and resisting arrest.
On defendant's direct appeal, we affirmed the conviction and remanded the sentence. State v. Morris, Docket No. A-0695-04 (App. Div. Feb. 10, 2006), certif. denied, 186 N.J. 605 (2006). In our opinion (slip op. at 2-3), we summarized the appellate issues, and our determination of those issues, as follows:
On appeal, defendant challenges his convictions, claiming his involuntary absence from the courtroom during portions of the jury selection and the beginning of trial violated his state and federal constitutional rights. He also challenges his sentence as excessive, arguing the trial court failed to recognize appropriate mitigating factors and abused its discretion in imposing an extended term. Defendant further contends the court violated the Sixth and Fourteenth Amendments of the United States Constitution by imposing a sentence above the then-presumptive statutory term solely on the finding of aggravating factors other than defendant's criminal record. We affirm defendant's conviction, but remand for resentencing in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, l47 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).
On remand, the trial court imposed the same sentence. Defendant once again appealed. We heard the appeal on an excessive sentence calendar and remanded a second time for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Morris, No. A-1228-06 (App. Div. May 1, 2008). On March 3, 2006, the trial court again re-imposed the twenty-year NERA extended term sentence.
The parties did not provide the JOC that resulted from the resentencing. We derive this information from Judge Neafsey's PCR opinion.
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Defendant filed a PCR petition in December 2008. In his petition, defendant asserted a plethora of arguments concerning his trial counsel's alleged ineffective assistance. Defendant also asserted a litany of allegedly incorrect decisions by the trial court, including erroneous evidentiary rulings and errors in denying various defense motions made prior to and during the trial. In support of the PCR, defendant submitted a certification asserting that trial counsel failed to advise him concerning the extent of his sentencing exposure if convicted, and asserting that, had defendant known the amount of prison time he faced if convicted, he would have accepted the State's five-year plea offer.
In a lengthy oral opinion, also placed on the record on May 13, 2011, Judge Neafsey rejected defendant's PCR arguments. Again, we will not repeat his entire opinion here. However, among other rulings, he found that both defendant's counsel and the trial judge advised defendant of "the penal consequences of going to trial." Citing State v. Taccetta, 200 N.J. 183, 195-96 (2009), the judge further reasoned that because defendant strenuously and continuously maintained his innocence, including in his trial testimony, he would not have accepted a plea bargain. Additionally, relying on Taccetta, the judge reasoned that "[d]efendant cannot plead guilty to a crime when he consistently maintains his innocence." In other words, a defendant cannot obtain PCR by claiming that he would have perjured himself in exchange for a favorable plea bargain.
The judge also concluded that none of the alleged trial errors defendant cited would have made a difference to the outcome. The judge further concluded that most of those arguments were barred by Rule 3:22-4, because they should have been raised on direct appeal. He found that the trial judge properly denied the defense motion for a judgment of acquittal. Judge Neafsey also concluded that appellate counsel was not ineffective in failing to raise the issue of consecutive sentencing, because the robbery in this case was a separate crime from the robbery in the other case, and the trial court did not err in imposing a consecutive sentence.
Although he denied the PCR petition on May 11, 2011, Judge Neafsey requested further briefing on a discrete sentencing issue concerning the imposition of consecutive extended terms. Applying the then-recent decision of State v. Pennington, 418 N.J. Super. 548 (App. Div. 2011), Judge Neafsey determined that the extended term imposed in this case was an illegal sentence. By order dated August 17, 2011, Judge Neafsey vacated the extended term sentence in Indictment No. 02-12-1658 and scheduled a re-sentencing for September 27, 2011. The re-sentencing was handled by another judge, after giving the attorneys the opportunity to submit written sentencing memoranda.
On November 4, 2011, Judge Brown conducted a sentencing hearing. During that hearing, defendant's attorney argued facts concerning defendant's current situation. Among other things, he pointed out that defendant "continues to attempt to compensate the victims . . . through money taken out of his [prison] account on a monthly basis." Defense counsel also told the judge that defendant was participating in "prison community service such as the paralegal class and the MA, Legal Association classes, and those certificates were submitted to the court." Counsel argued that during the past nine years of his incarceration, defendant was "rehabilitating himself" and thus was unlikely to re-offend. He also stated that defendant was trying, when possible, to give money to his son's mother for the child's support. Defendant also addressed the court, stating that he had finally tried to address his drug problem and was attempting to turn his life around.
The judge acknowledged that defendant had improved his education while in prison but did not accept that as a mitigating factor relevant to his sentence. He also reasoned that the scope of Judge Neafsey's order did not encompass whether the sentence was to be concurrent or consecutive but only what ordinary-range sentence should be imposed. After considering defendant's extensive criminal record, the seriousness of the offenses, and the fact that the victim in this case was elderly and disabled, the judge imposed a term of ten years subject to NERA.
On this appeal, defendant presents these points for our consideration:
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.
B. The Defendant Failed To Receive Adequate Legal Representation From His Original Trial Attorney Since, As A Result Of His Attorney's Failure To Accurately Inform Him With Respect To The State's Plea Offer, He Rejected The Plea Recommendation And Instead Proceeded To Trial, Subsequently Receiving A Sentence Significantly Greater Than That Embodied In The Plea Offer.
i. Trial Counsel Failed To Accurately Explain To The Defendant The Maximum Sentence He Faced If Convicted, Including The Maximum Parole Ineligibility, And The Consequences Of Refusing The Plea Offer And Going To Trial.
ii. Trial Counsel Failed To Advise Defendant Of The Three Year Parole Supervision Requirement Pursuant To The No Early Release Act On Indictment Number 02-10-1464 And On Indictment Number 02-12-1658 Which In The Aggregate Amounted To Six Years.
In a pro se brief, defendant also presents the following additional points:
POINT I - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I , [¶] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PCR COURT'S REFUSAL TO HOLD A POST-CONVICTION RELIEF EVIDENTIARY HEARING TO ADJUDICATE THE DEFENDANT'S CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Appellate Counsel Rendered Ineffective Assistance Of Counsel By Failing To Raise On Direct Appeal N.J.S.A. 2B:12-21(b) Is Unconstitutional Under The Fourth Amendment To The United States Constitution Because The Statue Confer[s] Authority To The Police To Administer Oaths For Complaints, Which Serve As A Basis For A Warrant, And Thus Would Warrant Dismissal Of Defendant's Criminal Complaint As Being Constitutionally Defective.
B. Defendant Was Denied The Effective Assistance Of Counsel When His Attorney Failed To File A Motion To Suppress The Black Fanny Pack And The Photographs Taken Of The Fanny Pack Based Upon Officer Medina's Affidavit Of Probable Cause
Supporting The Complaint Warrant Was Insufficient As A Basis For Probable Cause.
C. Defendant Was Denied The Effective Assistance Of Counsel When His Attorney Failed To File A Motion To Suppress The Black Fanny Pack And The Photographs Taken Of The Fanny Pack Based Upon Defendant's Complaint-Warrant Was Constitutionally Defective.
D. Defendant Was Denied The Effective Assistance Of Counsel When His Attorney Failed To File A Motion To Suppress The Black Fanny Pack And The Photographs Taken Of The Fanny Pack Based Upon The Municipal Court Judge's Finding Of Probable Cause Found On Defendant's Complaint-Warrant Was Erroneous.
POINT II - DEFENDANT'S SENTENCE IS BOTH ILLEGAL AND EXCESSIVE.
A. The Lower Court Erred In Failing To Recognize Appropriate Mitigating Factors At Defendant's New Sentencing Hearing Based Upon Evidence Of His Post-Sentencing Rehabilitation When Reconsidering His Sentence.
B. The Lower Court Erred When It Relied On A Presentence Report Prepared In 2003 And 2005 Regarding Other Charges.
C. The Lower Court Erred In Failing To Provide A Statement Of Reasons For Consecutive Maximum Sentences.
POINT III - THE PROCEDURAL BAR TO RELIEF UNDER RULE 3:22-4 DOES NOT APPLY TO DEFENDANT'S CLAIM UNDER POINT I, SUB-POINTS B, C AND D.
In a supplemental pro se brief, he contends:
POINT I - TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO REQUEST FOR A RELAXATION OF THE PLEA CUT-OFF DUE TO A MATERIAL CHANGE OF CIRCUMSTANCE.
We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
As in the PCR court, defendant once again argues that, had he not been "misadvised and misinformed by his attorney" he would have accepted a plea agreement. Relying on Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), he claims he was not told about his maximum exposure on the other pending cases against him and the possibility of consecutive sentencing, nor was he told about the possibility of multiple periods of parole supervision, and these errors caused him to reject the State's plea offer. Judge Neafsey found that defendant was told, in detail, about his sentencing exposure in this case and still turned down a plea offer of five years; he concluded defendant was determined to go to trial and would not have accepted any plea bargain. We agree. Defendant did not present a prima facie case of ineffective assistance of counsel on that, or any other issue, and was not entitled to an evidentiary hearing. See Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407; Taccetta, supra, 200 N.J. at 193; State v. Preciose, 129 N.J. 451, 462-63 (1992).
Defendant's sentencing argument is likewise unconvincing. Relying on Rule 3:21-2(a), defendant argues that Judge Brown re-sentenced him without obtaining a current pre-sentence report (PSR). See State v. Randolph, 210 N.J. 330, 354 (2012) (discussing the circumstances in which a court should consider a defendant's current circumstances in a re-sentencing hearing). First, the record simply does not reflect whether the judge obtained an updated PSR, and defense counsel certainly did not raise that issue before Judge Brown. Further, defendant has not provided us with Judge Neafsey's oral opinion on the re-sentencing issue, and hence we cannot determine with precision what he intended be considered on re-sentencing. See Randolph, supra, 210 N.J. at 354 (the materials to be considered on re-sentencing may depend on the terms of the decision directing re-sentencing).
However, it is clear from the re-sentencing transcript that defendant's attorney did place before Judge Brown facts concerning defendant's current circumstances, including his obtaining education while in prison and his efforts to compensate his victims. Judge Brown considered those facts, even though he determined they were not entitled to weight in his sentencing decision. Hence, even if Judge Brown did not obtain an updated PSR, we find no basis to disturb the sentence he imposed. Accordingly, we affirm the denial of PCR by Judge Neafsey and the sentence imposed by Judge Brown.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION