Opinion
DOCKET NO. A-5378-12T4
07-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH HARPER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Harris and Fasciale. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-05-00663. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Keith Harper appeals from the January 25, 2013 Law Division order denying his application for post conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
Pursuant to a guilty plea, Harper was convicted on April 16, 2010, of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4). In accordance with the terms of the plea arrangement, he was sentenced to a term of seven years imprisonment at the Adult Diagnostic Treatment Center in Avenel, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -19.
We affirmed the conviction and sentence pursuant to an Excessive Sentence Oral Argument (ESOA) calendar under Rule 2:9-11. State v. Harper, No. A-6255-09 (App. Div. April 6, 2011).
Harper filed a pro se application for PCR in March 2012, arguing that his defense attorney was ineffective for failing "to properly investigate the matter at hand," failing to obtain Harper's "mental health records from the various psychiatric hospitals [Harper] had been in," and failing to produce "documents nor witnesses for the [s]entencing [h]earing."
When PCR counsel was assigned, Harper's arguments blossomed into claims that his defense attorney "did not conduct a scene investigation of the incident locations," "did not consider an expert to counter the state's expert (Avenel Report) at sentencing," "conducted no independent investigation," "failed to file a written sentencing memorandum for sentencing," "failed to inform [Harper] that he was exposed to seven years NERA," "misinformed [Harper] of the implications of his Avenel report," "failed to interview any family members," and "failed to interview witnesses to counter the victim's impact statement."
Judge Joseph A. Portelli, who also was the sentencing judge, rejected all of Harper's PCR arguments. Judge Portelli indicated that he was aware of Harper's mental health issues at the time of sentencing and had "reviewed everything." The judge also noted, "I can't find that [defense counsel] didn't do anything that he should have done in this case." Accordingly, Harper's PCR application was denied, and this appeal followed.
On appeal, focusing mainly upon the effect of his mental health history for sentencing purposes, Harper presents the following argument for our consideration:
POINT I: DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS INEFFECTIVENESS OF COUNSEL CLAIM.We are not persuaded.
II.
We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. McDonald, 211 N.J. 4, 29-30 (2012).
First, Harper must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. With respect to both factors of the Strickland/Fritz test, a defendant asserting ineffective assistance of counsel bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).
Additionally, the Court has counseled that
[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting
Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).
[State v. Gaitan, 209 N.J. 339, 350 (2012).]
A sentencing court should consider all valid mitigating factors. State v. Blackmon, 202 N.J. 283 (2010); see also State v. Dalziel, 182 N.J. 494, 504 (2005) ("where mitigating factors are amply based in the record before the sentencing judge, they must be found"). "[T]he failure [of defense counsel] to present and argue the mitigating evidence can only be explained as attorney dereliction" and in some cases can rise to the level of ineffective assistance of counsel. State v. Hess, 207 N.J. 123, 154 (2011) (finding on a PCR appeal that the defendant did not receive effective assistance of counsel at sentencing due to his attorney's failure to raise mitigating factors).
Here, the record presents a spirited, if brief, oral presentation by defense counsel with respect to the sentencing calculus to be employed by the sentencing judge. Defense counsel highlighted Harper's "very troubled [mental health] past" as memorialized in the presentence investigation report and the Avenel Report. The attorney argued for a five year sentence, rather than the plea arrangement's maximum of seven years.
The fact of the matter is that the sentencing judge did not mistakenly exercise his discretion and defense counsel was not deficient in his effort to ameliorate the sentence. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel."). Moreover, we observe nothing else in defense counsel's handling of the matter that would have made a difference in the outcome.
Because Harper failed to present prima facie evidence of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 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 APPEALATE DIVISION