Opinion
DOCKET NO. A-3277-11T2
05-09-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER J. HOPPE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Accusation No. 09-03-0371.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Assistant Prosecutor, on the brief). PER CURIAM
Defendant Christopher J. Hoppe appeals from the December 16, 2010 Law Division order denying him post-conviction relief (PCR). We affirm.
On March 29, 2009, defendant appeared before Judge Thomas V. Manahan and entered a guilty plea on Accusation 09-03-0371-A, for two counts of second-degree Death by Auto, N.J.S.A. 2C:11-5(a), in exchange for dismissal of the remaining count of the accusation and a recommended sentence of two consecutive six-year terms of imprisonment with an 85% period of parole ineligibility on each.
On May 15, 2009, defendant appeared for sentencing. In furtherance of his sentencing memorandum, defense counsel argued for concurrent rather than consecutive sentences, or in the alternative, a sentence one degree lower, in the third-degree range, and recommended several mitigating factors under N.J.S.A. 2C:44-1(b), in particular, no prior criminal history, N.J.S.A. 2C:44-1(b)(7), [t]he character and attitude of the defendant indicate that he is unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9), defendant is likely to respond affirmatively to probation, N.J.S.A. 2C:44-1(b)(10), and imprisonment will entail excessive hardship, N.J.S.A. 2C:44-1(b)(11). Judge Manahan heard the emotionally charged statements from defendant, as well as friends and family of the victims and defendant. Ultimately, the judge found aggravating factor nine, the need for general deterrence, N.J.S.A. 2C:44-1(a)(9), and mitigating factors seven, no prior criminal history, N.J.S.A. 2C:44-1(b)(7), and eight, circumstance not likely to recur, N.J.S.A. 2C:44-1(b)(8). In sentencing defendant in accordance with the plea agreement, the judge imposed the consecutive sentences, reasoning that "to permit a concurrent sentence under these circumstances would, in effect, diminish the life and existence of one of the individuals who died needlessly on the road that night. . . . [T]his [c]ourt finds that to run a sentence concurrently in effect permits a free crime."
Defendant filed an appeal challenging the sentence, and our excessive sentencing panel considered the matter and affirmed the sentence. State v. Christopher Hoppe, No. A-5220-08 (App. Div. Dec. 29, 2009).
Defendant filed a timely pro se PCR petition claiming ineffective assistance of counsel at sentencing for failing to argue for a concurrent sentence and additional mitigating factors. Defendant also alleged that his counsel failed to conduct investigations and failed to pursue certain pretrial motions, including a motion to dismiss the indictment. Appointed PCR counsel submitted a supporting brief. Judge Manahan heard oral argument on December 16, 2010.
First, the judge considered moot defendant's claim that counsel failed to file a motion to dismiss the indictment since defendant did not seek to withdraw or challenge his guilty plea. Next, the judge determined that an evidentiary hearing was not required. As to the merits, the judge concluded that defendant's contentions that trial counsel failed to raise additional mitigating circumstances or argue for concurrent sentences were insufficient to satisfy the first Strickland prong. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (stating that "defendant must show that counsel's performance was deficient"); see also State v. Fritz, 105 N.J. 42, 66 (1987) (adopting the Strickland standard in New Jersey). In particular, he noted that defense counsel's performance was not deficient, as counsel had submitted a sentencing memorandum and argued for concurrent sentences, multiple mitigating factors, and sentencing in the third-degree range. In addressing the second prong, the judge stated: "The [c]ourt does not find on the record before it that there's any reasonable probability to undermine the confidence and the outcome below." See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (noting that in a criminal matter, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").
Defendant also claimed that counsel should have argued that defendant was a youthful offender, thereby providing another mitigating factor for the court's consideration.
On appeal, defendant raises the following issues:
I. THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant Made a Prima Facie Showing of Ineffective Assistance of Counsel Under the First Prong of the Strickland/Fritz Test.II. THE COURT'S RULLING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
B. Defendant Was Prejudiced Under the Second Prong of the Strickland/Fritz Test.
C. The Matter Should Be Remanded For a Full Evidentiary Hearing Because the PCR Court Relied on Out-of-Court Double Hearsay Statements in Finding That Defendant Failed to Make a Prima Facie Showing of Ineffective Assistance of Counsel.
III. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. Trial Counsel's Failure to Properly Argue [Pretrial] Motions; Trial Counsel's Failure to File a Motion to Suppress Evidence; and Trial Counsel's Failure to File a Motion to Dismiss the [Accusation] Resulted in Ineffective Assistance of Counsel.
We have considered the record and affirm for the reasons set forth in Judge Manahan's well-reasoned oral opinion. We add only the following.
Defendant's claim of counsel ineffectiveness for failing to present additional mitigating factors and failing to adequately argue for a sentencing downgrade amount to no more than an excessive sentencing argument cloaked in "ineffective assistance of counsel" language. Such excessive sentencing claims, however, are not cognizable on PCR review. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-2 (2013); State v. Acevedo, 205 N.J. 40, 45-46 (2011). They are also procedurally barred in this matter under Rule 3:22-5 as either previously raised and decided, or capable of having been so raised pursuant to Rule 3:22-4.
In addition, defendant's claim that his status as a "youthful offender" should have been offered as a mitigating factor has no merit, as no such mitigating factor exists. The only mitigating factor that involves a defendant's age is mitigating factor thirteen, which states: "The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant." N.J.S.A. 2C:44-1(b)(13). The facts of this case do not support such an argument.
In any event, even if any of defendant's assertions were properly cognizable here, we are persuaded that the alleged deficiencies clearly fail to meet the Strickland test. The claims now being made would not have resulted in a different, more favorable outcome for defendant, and none required an evidentiary hearing. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We are also satisfied that defendant's remaining arguments do not warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION