Opinion
DOCKET NO. A-6044-12T3
03-31-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUAN D. HOWARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1344. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Duan D. Howard appeals from the March 25, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On July 14, 2006, defendant was sentenced pursuant to a non-negotiated plea. The State had offered thirteen years subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge had indicated he would impose a ten-year sentence, assuming defendant's presentence report summary of his prior criminal history and other information accorded with the representations made by counsel. Defendant's signed plea agreement included a fourth page titled "Supplemental Plea Form for Non-Negotiated Pleas," reviewed on the record with the judge and counsel as required by the rules, simultaneous with defendant's plea colloquy. Defendant established the factual basis for his guilty plea to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1(b). Defendant's subsequent appeal on an excessive sentence calendar, Rule 2:9-11, was denied on October 14, 2008. Defendant filed a timely petition for PCR.
Rule 3:9-3(c) states that the court can indicate to the prosecutor and defense counsel, in the absence of a plea agreement, and with the consent of both counsel, "the maximum sentence it would impose in the event the defendant enters a plea of guilty, assuming . . . that the information in the presentence report at the time of sentence is as has been represented to the court at the time of the disclosure and supports its determination that the interests of justice would be served thereby."
The charges arose when defendant, along with three others, robbed two victims at gunpoint. One of the victims was "pistol-whipped."
Defendant was twenty-three years old when sentenced, had no adult prior convictions, but had been adjudicated delinquent on five occasions. Without record support, counsel on appeal asserts that defendant then suffered from untreated paranoid schizophrenia, and "has a young son whom he financially supported prior to his incarceration."
No copy of the pre-sentence report was provided on the appeal; however, in his findings, the PCR judge stated that defendant had been adjudicated delinquent on five occasions, the last occurring "approximately twenty-five months before [defendant]'s July 20, 2005, arrest for the instant offenses."
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The record indicates that defendant was the last of the group of co-defendants on the indictment who were sentenced that day, one after another. Defense counsel made little comment on defendant's behalf other than repeating his client's request for a lesser sentence, and stating that he had explained to his client that since the judge had denied the similar request made by every other co-defendant on the indictment, he anticipated that the judge would deny this defendant's request as well. With virtually no comment, and without finding any aggravating or mitigating factors, the judge imposed the ten-year sentence. The judgment of conviction nonetheless indicates that aggravating factors three, six, and nine were found and none found in mitigation. N.J.S.A. 2C:44-1(a)(3), (6), and (9).
On the PCR motion, defendant raised the same argument now made on appeal: that counsel's failure to argue mitigating factors to the court constituted ineffective assistance of counsel. Defendant contends that, had they been raised to the court, he would have received a sentence in the second-degree range of five to ten years subject to NERA.
In his eight-page written decision, the PCR judge specifically addressed each of defendant's proposed mitigating factors: seven, eight, nine, eleven, and twelve. N.J.S.A. 2C:44-1(b)(7), (8), (9), (11), and (12). He found that, given defendant's juvenile history and the brief lapse in time between his last adjudication and the commission of this offense on July 20, 2005, there was no basis in the record for mitigating factors seven, eight, or nine. He also found that mitigating factor eleven did not apply as defendant's "illness is being treated while he is incarcerated and there is no evidence to show that he is receiving inadequate treatment. In addition, there is no requirement that a court reduce a prison sentence so a defendant is not imprisoned during his years as a young adult." Lastly, he found that mitigating factor twelve did not apply because it only relates to cooperation with law enforcement authorities, and not defendant's acceptance of a guilty plea. Thus the judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel, and was therefore not entitled to an evidentiary hearing because his proofs fell far short of the requirements of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
On appeal, defendant argues:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
To demonstrate ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient;" 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 v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must also establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).
That the judge was sentencing defendant in accord with a plea, non-negotiated or not, did not relieve him of the obligation to make the findings required in every sentencing proceeding. See R. 3:21-4(g); State v. Sainz, 210 N.J. Super. 17 (App. Div. 1986), aff'd, 107 N.J. 283 (1987).
It cannot be disputed that the sentence hearing in this case fell short of the requirements of our rules and relevant caselaw. Counsel proffered little information about defendant, no comment on the presentence report, and virtually no argument with regard to the imposition of sentence. When asked if he had anything he wished to add, defendant said only "I don't have anything to say." Likewise, the judge said little other than to note that all the co-defendants "c[a]me from good families." He made no findings as to aggravating and mitigating factors. Despite these disturbing omissions, however, defendant faces the insurmountable problem that the record does not support his assertion that had mitigating factors been argued to the court, he would have been sentenced to a lesser term.
Obviously, defendant failed in his direct appeal to establish any basis for the mitigating factors that are now being raised for our consideration. Nor was any additional information provided to the PCR judge to support the proposed factors, by way of certification or some other documentation. Similarly, on appeal, counsel does not direct our attention to anything in the record that supports any mitigating factor.
In this case, the State offered defendant a negotiated plea to thirteen years, subject to NERA, concurrent, for an armed robbery involving two victims. The judge indicated he would impose a lesser sentence, ten years, and did so. Ten is the lowest number of years of imprisonment that can be imposed on a first-degree crime and, in our view, is a very favorable sentence given the circumstances of the offense involving one robbery but two victims facing a number of assailants, at least one of whom wielded a handgun.
As a result, we can only conclude that defendant's unsupported allegations are the equivalent of "bald assertion[s]." See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Merely stating that, had his attorney argued mitigating factors, the judge would have found them, is not enough. Defendant does not suggest any facts that would have supported mitigating factors, or reasons the judge would have looked upon such arguments favorably.
A reduction to a lesser term, one in the second-degree range, would have required the judge to be clearly convinced that the mitigating factors substantially outweighed the aggravating. See N.J.S.A. 2C:44-1(f)(2); State v. Rice, 425 N.J. Super. 375 (App. Div.), certif. denied, 212 N.J. 431 (2012). Since defendant does not identify any information in the record which supports any mitigating factor whatsoever, we are unable to agree that the interests of justice would have required a sentence in the second-degree range.
Thus counsel's failure to argue mitigating factors does not compel us to conclude his attorney was ineffective. Counsel's assistance was within the range of competence demanded of attorneys in criminal cases in the narrow sense that his failure to argue mitigating factors was explained by the lack of support for them.
Furthermore, nothing in the record convinces us that but for the expectation of a sentence in the second-degree range, to less than ten years, defendant would have proceeded to trial. With his attorney's assistance, defendant was able to obtain from the judge a sentence to three years less than was offered by the State. Given that this is a NERA sentence, that three-year difference was a substantial benefit. Having concluded that defendant's claims are nothing more than unsupported bare allegations, we affirm the judge's denial of any relief, including an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION