Opinion
DOCKET NO. A-1017-14T3
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.E.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Ann Lodeserto, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-05-1511. Joseph E. Krakora, Public Defender, attorney for appellant (Karen Ann Lodeserto, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant D.E.S. appeals from an order dated September 2, 2014, denying his petition for post-conviction relief (PCR). Having considered defendant's arguments and the record, we affirm.
Defendant pled guilty to two counts of second-degree sexual assault (Counts Seventeen and Twenty-Six), N.J.S.A. 2C:14-2(b), and one count of second-degree endangering the welfare of a child (Count Thirty-Nine), N.J.S.A. 2C:24-4(a). In exchange for his plea, the prosecutor agreed to dismiss the remaining counts of the indictment and recommend the following sentence: two consecutive five-year prison terms for Counts Seventeen and Twenty-Six, and a concurrent flat five-year prison term for Count Thirty-Nine. Both Counts Seventeen and Twenty-Six would also include an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, a three-year term of parole supervision, and parole supervision for life.
At the sentencing hearing, defendant's trial counsel argued defendant's minimal criminal history, remorse over the crime committed, and his amenability to treatment as mitigating factors. The trial judge concluded "the aggravating factors preponderate over any mitigating factors" after he found aggravating factors two and three, and mitigating factor fourteen. The judge then imposed the prosecutor's recommended sentence in accordance with the plea agreement.
There is no mitigating factor fourteen, however, the trial judge was likely referring to mitigating factor ten when he acknowledged defendant "wanted to be treated." See N.J.S.A. 2C:44-1(b)(10) ("The defendant is particularly likely to respond affirmatively to probationary treatment.").
Although the judge did sentence defendant to a three-year term of parole supervision following his release from prison, it is not included in the original judgment of conviction, dated March 31, 2010. --------
On March 25, 2011, the judgment of conviction was amended to include a six-year term of parole supervision in addition to parole supervision for life. On June 6, 2011, defendant's judgment of conviction was amended a second time to include, in addition to parole supervision for life, a three-year term of parole supervision to apply only for Count Seventeen. Defendant did not file a direct appeal, but on February 20, 2014, he filed a petition for PCR.
Defendant alleged the judge imposed an illegal sentence by ordering consecutive three-year terms of parole supervision for Counts Seventeen and Twenty-Six. He also alleged trial counsel provided ineffective assistance because he failed to argue the applicability of certain mitigating factors at sentencing, including his military service, his cooperation with police after he was arrested, and his prior law-abiding life for a substantial length of time. Defendant's petition was denied by the trial judge without an evidentiary hearing.
The judge reasoned defendant's sentence was legal following the June 6, 2011 amendment to the judgment of conviction which imposed a three-year term of parole supervision with respect to only Count Seventeen. Furthermore, noting that at sentencing he was already aware of defendant's military history, his criminal history of one theft conviction from 1975, and his cooperation with the police, the judge reasoned those factors would not have resulted in the imposition of a lower sentence. The judge denied defendant's request for an evidentiary hearing, finding defendant failed to make a prima facie case of ineffective assistance of counsel.
Defendant appeals from a portion of that order, requesting an evidentiary hearing and raises this single issue:
DEFENDANT IS ENTITLED TO A RESENTENCE BECAUSE HIS PLEA ATTORNEY WAS INEFFECTIVE AT HIS SENTENCE HEARING.More specifically, defendant argues his counsel failed to raise the aforementioned mitigating factors during sentencing.
When petitioning for post-conviction relief, the defendant must establish by a preponderance of the evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). To demonstrate ineffective assistance of counsel, a defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). That is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and "there is 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. Notably, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Moreover, a defendant must make more than "bald assertions that he was denied effective assistance of counsel[;]" the allegations of substandard performance must be based on specific facts. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In that context, trial courts should only grant an evidentiary hearing when: (1) a defendant presents a prima facie claim of ineffective assistance of counsel, (2) there exist material issues of disputed fact that cannot be resolved by reference to the existing record, and (3) such a hearing is necessary. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b).
Defendant's petition does not present a factual dispute requiring a hearing. Nor has defendant established a prima facie case of ineffective assistance of counsel. The sentencing judge found all factors defendant now claims were not raised were known and considered at sentencing. He concluded had counsel more specifically urged application of these facts required imposition of a lesser sentence than the one recommended by the plea agreement, he would not have imposed a shorter sentence.
We conclude the trial judge's findings were supported by substantial credible evidence in the record. Having considered defendant's arguments, we conclude they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Therefore, we affirm substantially for the reasons expressed by the trial judge in his well-reasoned written opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION