Opinion
DOCKET NO. A-3311-10T4
08-08-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL PENNINGTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1530.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Pennington appeals from an order entered by the Law Division on October 15, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count one); and second-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count two). On December 19, 2007, defendant pled guilty to first-degree armed robbery, as charged in count one. The State agreed to dismiss the other count, as well as the two underlying warrants.
The plea agreement provided that the State would recommend a ten-year sentence, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement also provided that defendant reserved the right to ask the court to sentence him as a second-degree offender.
At the December 19, 2007 plea hearing, defendant admitted that, on December 2, 2006, he entered the Commerce Bank branch in Camden, jumped over the counter, and gestured as if he had a knife or other weapon that would put someone in fear. Defendant acknowledged he took cash from the bank and ran out the door.
Defendant was sentenced on February 1, 2008. The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court dismissed count two of the indictment and sentenced defendant to a ten-year term of incarceration, with a period of parole ineligibility, as prescribed by NERA. The court also imposed applicable penalties and assessments.
Defendant appealed from the judgment of conviction dated February 1, 2008, as corrected by an amended judgment filed on April 3, 2008. The appeal was heard on the court's Excessive Sentence Oral Argument Calendar. R. 2:9-11. We entered an order affirming the trial court's judgment. State v. Pennington, No. A-4947-07 (App. Div. March 3, 2009).
Defendant then filed a motion for clarification. We filed an order granting the motion. State v. Pennington, No. A-4947-07 (App. Div. April 2, 2009). The order stated that we considered all the issues raised on appeal to be lacking in merit and defendant had provided a sufficient factual basis for the plea. Ibid.
Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Pennington, 199 N.J. 543 (2009).
On November 9, 2008, defendant filed a pro se PCR petition in the Law Division. The PCR court assigned counsel to represent defendant, and counsel filed a brief in which he argued, among other things, that defendant had been denied the effective assistance of counsel because trial counsel failed to investigate and raise certain mitigating factors at the sentencing hearing. The PCR court considered the petition on October 15, 2010, and, after hearing the arguments of counsel, placed its decision on the record.
The court determined that defendant's claim was, in essence, a claim that his sentence was excessive, which was not a cognizable ground for PCR. The court also determined that defendant's petition was barred by Rule 3:22-5 because the claims were previously adjudicated in the excessive sentence appeal. The court additionally found no merit in defendant's claim that he had been denied the effective assistance of counsel. The court entered an order dated October 15, 2010, denying PCR. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WIHTOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS TRIAL COUNSEL WAS INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY INVESTIGATE MITIGATING FACTORS THAT SHOULD HAVE BEEN RAISED DURING DEFENDANT'S SENTENCE HEARING.
Defendant argues that he was denied the effective assistance of trial counsel and the PCR court erred by concluding otherwise. We do not agree.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for consideration of such claims raised under the Sixth Amendment to the United States Constitution. The defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
The defendant also must show that 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. Our Supreme Court has adopted this test for evaluating ineffective-assistance-of-counsel claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
In this case, defendant claims that he was denied the effective assistance of counsel at sentencing. He alleges that his trial attorney failed to adequately investigate facts that could have been presented to the sentencing judge in support of his request for findings of certain mitigating factors. We are satisfied that the PCR court correctly found no merit in this claim.
The transcript of the sentencing hearing indicates that defendant's attorney argued that the court should find mitigating factor two. N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his/her conduct would cause or threaten serious harm). Defendant's attorney asserted that defendant did not contemplate that his conduct would cause or threaten harm because he did not possess a knife at the time of the robbery.
Defense counsel further argued that mitigating factor four applied. N.J.S.A. 2C:44-1(b)(4) (there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense). Defendant's attorney stated that defendant had serious problems with drug and alcohol addictions, noting that defendant's prior offenses involved drug possession or alcohol abuse. Counsel asserted that defendant's substance abuse problems were a part of what caused him to commit the robbery.
In addition, defendant's attorney argued the court should find mitigating factor eight. N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur). Defense counsel said that, while one could never say "for sure" that a person would not repeat certain conduct, it was unlikely that defendant's conduct would recur because defendant had been "sober" while incarcerated in the county jail. Counsel also said that she believed defendant would take advantage of any programs available in state prison to avoid a recurrence of his criminal conduct.
Defendant's attorney further argued that the court should find mitigating factor eleven. N.J.S.A. 2C:44-1(b)(11) (imprisonment will entail excessive hardship to defendant or his dependents). Counsel stated that defendant was "very close" to his mother and he had helped her as much as possible financially. Counsel said that defendant would not be able to provide financial assistance to his mother during his incarceration.
Defendant's attorney additionally argued that the court should find mitigating factor twelve. N.J.S.A. 2C:44-1(b)(12) (willingness of defendant to cooperate with law enforcement authorities). Defense counsel said that defendant had given a statement to the police, in which he admitted he robbed the bank. Counsel stated that defendant was a "willing participant" in bringing "this matter to conclusion[.]"
The sentencing court refused to find these mitigating factors. The court determined that mitigating factor two was not applicable because, during the course of the robbery, defendant made a gesture indicating he had a knife. The court said that, while defendant may not have intended to hurt anyone and may not have been in possession of a knife, he nevertheless threatened to inflict serious bodily harm upon the bank's employee.
The court also determined that mitigating factor four did not apply. The court noted that defendant had several prior convictions arising from his drug use and, as a consequence, he had been incarcerated in state prison. The court also noted that defendant had been sober before but his use of drugs was a voluntary act. Thus, there was no basis to excuse defendant's conduct.
In addition, the court found that mitigating factor eight was not applicable. The court stated that defendant's conduct was not the result of circumstances unlikely to recur. The court noted that defendant had been convicted of drug offenses in the past. The court indicated that, in light of that history, it could not be said that the circumstances that led to this offense were unlikely to recur.
The court further determined that mitigating factor eleven was inapplicable. The court stated that, while defendant had a close relationship with his mother, defendant had not presented any evidence indicating that his mother would suffer any excessive hardship upon his incarceration.
The court additionally found that mitigating factor twelve did not apply. The court said that, although defendant confessed to committing the instant offense, there was no evidence that he provided any cooperation to law enforcement with regard to any other persons.
The court also rejected counsel's argument that defendant should be sentenced as a second-degree offender. The court stated it could not find that the mitigating factors outweighed the aggravating factors or that there was a compelling reason to sentence defendant as a second- rather than first-degree offender. The court said defendant would be sentenced "at the very bottom of the first degree range consistent with the plea[.]"
Thus, the transcript of the sentencing proceeding fully supports the PCR court's determination that defendant's attorney was not deficient in seeking findings of mitigating factors at the sentencing proceeding. Defendant maintains that his attorney should have investigated and presented additional facts to the sentencing court in support of her arguments, but defendant did not present any affidavits or certifications indicating what those facts might be.
Moreover, as the PCR court determined, defendant failed to establish that a shorter sentence would have been imposed had defense counsel handled the sentencing differently. Defendant pled guilty to a first-degree offense. He was sentenced to a ten-year term, which is the shortest sentence that could have been imposed for a first-degree offense. N.J.S.A. 2C:43-6(a)(1).
Defendant failed to show that findings of one or more mitigating factors would have resulted in his sentencing as a second-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2). The statute requires the court to find mitigating factors "substantially outweigh" the aggravating factors and the "interest of justice demands" a sentencing downgrade. Ibid.
Defendant further argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Again, we disagree. An evidentiary hearing is required only if a defendant presents a prima facie case in support of PCR. State v. Preciose, 129 N.J. 451, 462 (1992). To do so, a defendant "must demonstrate [a] reasonable likelihood of succeeding" under the Strickland test. Id. at 463 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Because defendant did not present a prima facie case under Strickland, the PCR court was not required to conduct an evidentiary hearing on his petition.
In view of our determination that the PCR court correctly found that defendant was not denied the effective assistance of counsel, we need not consider whether the PCR court erroneously found defendant's claims were barred by Rule 3:22-5.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION