Opinion
DOCKET NO. A-1281-12T3
05-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. S.G., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-04-1137 and 09-02-0521.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant S.G. appeals from the September 14, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On November 13, 2007, defendant confronted his girlfriend, M.T., in a home they shared and accused her of cheating on him. Defendant, who was intoxicated, struck M.T. several times in the face and body and would not let her leave the residence. Defendant then sexually assaulted M.T. in the bedroom. When M.T.'s children returned home from school, she was able to leave the house and call the police.
When police arrived, defendant barricaded himself and his eighteen-month-old son in the home and refused to open the door. Defendant then took his son to the second floor and opened the blinds of a window. The police observed defendant holding the child in one hand and waiving a handgun erratically with his other hand. Police observed defendant pointing the gun at them and at his child. After several conversations with police, defendant agreed to surrender.
A grand jury sitting in Camden returned a seventeen-count indictment, charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A. 2C:13-1(b)(2); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and additional aggravated assault and related weapons charges. Ten months later, defendant was indicted again and charged with second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
In May 2009, defendant resolved the charges in the first indictment by pleading guilty pursuant to a plea agreement to an amended charge of second-degree aggravated assault, second-degree child endangerment, and second-degree certain persons. In June 2009, also pursuant to a plea agreement, defendant resolved the charges in the second indictment with a guilty plea to fourth-degree unlawful possession of a weapon.
In July 2009, defendant was sentenced in accordance with both plea agreements to an aggregate twelve-year term on the first indictment and a concurrent eighteen-month term on the second. There was no direct appeal, as defendant waived that right in the plea agreements.
In January 2012, defendant filed a pro se petition for PCR. Counsel was appointed and a brief in support of defendant's petition was filed. Defendant argued that his plea counsel was ineffective at his sentencing in failing to argue the applicability of mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that imprisonment would entail excessive hardship to himself or his dependents.
Judge Irvin J. Snyder, who accepted defendant's guilty pleas and sentenced him, denied the PCR petition in a letter opinion.
On appeal, defendant raises three points:
POINT ONE
THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT. (NOT RAISED BELOW).
POINT TWO
IN THE ALTERNATIVE, IF THIS COURT DOES NOT REMAND FOR ORAL ARGUMENT AND INSTEAD ADDRESSES THE ISSUES ON THE MERITS, THEN THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON [S.G.'S] CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ADVOCATE FOR HIM AT SENTENCING.
POINT THREE
ALL OTHER CLAIMS RAISED BY [S.G.] ARE INCORPORATED IN THIS APPEAL.
We have considered these arguments in light of the record, and conclude that they are unpersuasive. We affirm substantially for the reasons expressed by Judge Snyder in his thoughtful and comprehensive written opinion supporting his September 14, 2012 order denying defendant's PCR petition. We add only the following brief comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "To meet prong one, a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Defendant's ineffective assistance claim is based on the failure of his plea counsel to argue the applicability of mitigating factor eleven because his incarceration and possible deportation would constitute a hardship to his family.
On the record before us, we agree with Judge Snyder that there was insufficient evidence to support the application of mitigating factor eleven. Thus, plea counsel's failure to pursue that argument at sentencing did not amount to ineffective assistance. There has been no showing sufficient to satisfy either prong of the Strickland/Fritz test with respect to defendant's sentencing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION