Opinion
DOCKET NO. A-4034-12T3
06-24-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. LAFRANCE R. SPRIGGS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Priscilla J. Gabela, Special Deputy Attorney General/ Acting Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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, Hudson County,
Indictment No. 10-07-1278.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto,
Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County
Prosecutor, attorney for respondent (Priscilla
J. Gabela, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Lafrance R. Spriggs appeals from the February 1, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Defendant entered a guilty plea to two counts of a nine-count indictment. One of the two offenses to which he pleaded guilty, third-degree possession of marijuana in a quantity of one ounce or more with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and -7, required that he be sentenced as a second-time drug distributor, pursuant to N.J.S.A. 2C:43-6(f), to a mandatory extended term. This meant that the sentencing judge was required, at a minimum, to impose a term of parole ineligibility between a third and one-half of the sentence or three years, whichever was greater. See N.J.S.A. 2C:43-6(f). The term of imprisonment had to be in the second-degree range, between five and ten years. See N.J.S.A. 2C:35-7 and 2C:43-6(a)(3). In other words, the lowest term of imprisonment that the judge could impose was five years with three years of parole ineligibility. Defendant was subject to mandatory sentencing as a second-time drug distributor because he had previously been convicted of third-degree possession of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7, and, in fact, was on probation for that offense when the circumstances arose that resulted in the indictment. When defendant entered his guilty plea, the judge clearly explained the mandatory nature of his sentence. The judge then stated: "[T]he best sentence you could hope for on that drug case is [five] with [three]. . . . Do you understand that?" Defendant answered: "Yes."
Defendant simultaneously entered a guilty plea to second-degree eluding, N.J.S.A. 2C:2 9-2(b). The plea agreement notes: "State free to speak up to seven (7) [years] NJ State Prison with 42 [months] parole ineligibility to run concurrent with seven (7) years NJ State Prison. Both sentences to run concurrent with any VOP." The agreement also provided: "Defense free to argue for 5/3 NJSP on 1000 [feet] and 5 [years] NJSP on [second-degree] eluding. To run concurrent with each other and concurrent with any VOP."
The charges arose from defendant's efforts to flee police while in possession of 44 8 grams of marijuana, in excess of one ounce, within 1000 feet of a public school in Jersey City. As he drove away from the officers who were in pursuit, defendant increased his speed, causing an accident involving four other cars, injuring two persons from the other vehicles. After the plea colloquy, the judge found defendant, who expressed his satisfaction with his attorney, had entered a knowing, intelligent, and voluntary guilty plea while represented by competent counsel.
Defendant's adult pre-sentence report stated that he attended two semesters of a community college while residing in Kansas, two semesters of Albany College when he returned to the region, and, finally, two semesters at William Patterson University. Defendant explained to the probation officer who authored the report that he could not afford to finish college but had recently obtained a certificate of real estate from Weichert Real Estate School.
At sentencing, defendant's attorney argued for imposition of the mandatory minimum, five years subject to three years of parole ineligibility, while the State argued for seven years subject to three of parole ineligibility. The court found the following aggravating factors: the risk of reoffense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal history, and the seriousness of the current offense, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from offending, N.J.S.A. 2C:44-1(a)(9). He also found in mitigation that defendant expressed "true remorse." Curiously, although not a statutory mitigating factor, this is noted in the judgment of conviction as mitigating factor "14." No direct appeal was filed.
Among the several arguments made to the judge who decided defendant's PCR petition was that his trial counsel was ineffective because he did not argue mitigating factors on his behalf at sentencing, specifically, his college education.
After reviewing the familiar standard for ineffective assistance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the judge said on the issue of counsel's alleged failure to raise mitigating factors:
[Defendant's] prior conviction subjected [him] to the provisions of N.J.S.A. 2C:43-6(f) . . . . [Defendant's] plea counsel successfully argued for a lower term than that offered by the State.
. . . .
. . . [I]t would have been unrealistic and, indeed, futile for defense counsel to argue that the mitigating factors outweighed the aggravating factors when there were no facts before the [c]ourt to support such an argument. Even if such an argument were made, the [c]ourt lacked discretion to sentence [defendant] to a lesser sentence.
Hence, the court found that defendant failed to establish a prima facie case pursuant to the two-prong Strickland standard, substandard representation and prejudice to the outcome, as made applicable to plea agreements in State v. DiFrisco, 137 N.J. 434, 456-57 (1994). Defendant failed to show that, "but for counsel's errors, [he] would not have pled guilty and would have insisted on going to trial." Id. at 457 (internal quotation marks omitted). Further, defendant was not entitled to an evidentiary hearing because, even viewing the facts in the light most favorable to his position, he could not satisfy the Strickland standard.
On appeal, defendant argues:
POINT ONE
DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE MITIGATING FACTORS ON HIS BEHALF AT SENTENCING.
We find no merit to these arguments. R. 2:11-3(e)(2). We deny the appeal for the aforementioned reasons stated by Judge Lisa Rose. We add only that defendant's educational background was summarized in the pre-sentence report, which the judge would have read prior to sentence. He would have been aware of the information regardless of whether defendant's attorney repeated it. In any event, the sentencing judge imposed the least harsh sentence available under the law.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DMSION