Opinion
DOCKET NO. A-2376-12T4
01-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AUBREY TULLOCH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-10-1251. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Aubrey Tulloch appeals from the Law Division's November 1, 2012 order denying his petition for post-conviction relief (PCR).
In 2002, defendant was arrested in an apartment complex in possession of several pounds of marijuana. A grand jury in Burlington County returned a six-count indictment charging defendant with first-degree possession of the drugs with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a), and other lesser charges. Defendant failed to appear for arraignment and a warrant was issued for his arrest.
Eight years later, defendant appeared and negotiated a plea agreement. The State agreed to amend the first-degree charge to a second-degree charge, and consented to have defendant sentenced as a third-degree offender, with a recommended custodial term of four years with a two-year parole disqualifier.
The court sentenced defendant in accordance with the plea agreement, taking into consideration defendant's plea counsel's assertion of several mitigating arguments, including the facts that defendant was a fifty-three-year-old man with no criminal record and the parent of a twenty-year-old son.
Defendant did not file a direct appeal of his sentence. Instead, he filed the present PCR application, alleging ineffective assistance of his plea counsel. In particular, he contends that his attorney should have argued mitigating factor one (the absence of serious harm or the threat of such harm) and factor eleven (excessive hardship). With respect to factor one, he emphasizes that no weapons were found or involved in this matter. Regarding factor eleven, he supplied a certification stating that he provides some financial support to the mother of his child for her own two children, and that he has an elderly mother.
Oral argument on the petition was heard by Judge Jeanne T. Covert, who was also the judge who accepted defendant's guilty plea. Finding that no evidentiary hearing was necessary, Judge Covert dismissed the PCR application and issued a thorough written opinion.
On appeal, defendant raises two points:
POINT ONE
DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY BARRED.
POINT TWO
THE PCR COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
We do not find merit in either argument and affirm on the basis on Judge Covert's well-reasoned decision. We add only the following observations.
Judge Covert initially concluded that defendant's sentencing arguments were not properly being raised in a PCR application. However, she went on to analyze the substance of defendant's arguments and found that they had no merit.
With respect to mitigating factor one, Judge Covert noted that drug crimes, by their nature, can represent serious offenses and there is no need for a weapon to be involved to create that severity. With respect to mitigating factor eleven Judge Covert noted that this factor is inapplicable to first-degree offenses with presumptive jail time and defendant failed to overcome that presumption because he did not quantify the level of support that he voluntarily supplies to the mother of his son for her own children, nor to his own twenty-year-old son. In addition, Judge Covert noted that defendant's mother lives in Jamaica.
Judge Covert concluded that plea counsel had effectively presented other mitigating arguments, including defendant's age and lack of a criminal record, at sentencing, and that was more than ample to satisfy the Constitution. We affirm Judge Covert's decision on both procedural and substantive grounds.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION