Opinion
DOCKET NO. A-5717-12T4
04-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT WASHINGTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). James P. McClain, Atlantic City Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-0904. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). James P. McClain, Atlantic City Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Robert Washington appeals from a February 8, 2013 Law Division order denying his application for post-conviction relief (PCR). On appeal, defendant challenges the denial of his petition as erroneous, arguing he established a prima facie claim trial counsel rendered ineffective assistance, and asserts an evidentiary hearing to develop the record must be conducted. On appeal, defendant argues:
POINT IIn a pro se supplemental brief, defendant states:
THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
POINT 1
JUDGE MISAPPLIED AGGRAVATING FACTOR #2, "THE GRAVITY AND SERIOUSNESS OF HARM INFLICTED ON THE VICTIM." THIS FACTOR IS TO [BE] INCLUDE[D] PARTICULARLY IF DEFENDANT "KNEW-SHOULD HAVE KNOWN THAT THE VICTIM WAS PARTICULARLY VULNERABLE OR INCAPABLE OF RESISTANCE DUE TO ADVANCED AGE, ILL HEALTH, EXTREME YOUTH, OR FOR ANY OTHER REASON SUBSTANTIALLY INCAPABLE OF EXERCISING NORMAL PHYSICAL OR MENTAL POWER OF RESISTANCE."
POINT 2
DEFENDANT IS ENTITLED TO HAVE MITIGATING FACTOR SIX APPLIED. IN THE PRESENT CASE, DEFENDANT, AS PART OF HIS SENTENCE[,] WAS ORDERED TO PAY RESTITUTION IN THE AMOUNT OF ONE HUNDRED FIFTY DOLLARS ($150.00) REQUESTED BY THE [VICTIMS OF CRIME COMPENSATION BOARD] FOR WHICH THEY REIMBURSED THE VICTIM FOR MEDICAL COSTS.
POINT 3
ABSENT AGGRAVATING FACTOR TWO, AND INCLUDING MITIGATING FACTOR SIX, AT SENTENCING AVAILS DEFENDANT TO CONSIDERATION OF A SENTENCE OF LESS THAN THE SIXTEEN YEARS HE RECEIVED.
POINT 4
THE SENTENCING COURT IMPROPERLY DISPLAYED BIAS WHICH IMPROPERLY AFFECTED ITS[] JUDGMENT AND SENTENCING OF THE DEFENDANT. UPON CONCLUSION OF THE VICTIM'S IMPACT STATEMENT AT SENTENCING, THE JUDGE REMARKED TO HER: "YOU ARE A VERY BRAVE AND BEAUTIFUL YOUNG WOMAN . . . ."
POINT 5
THE POST[-]CONVICTION RELIEF COURT IMPROPERLY DISPLAYED BIAS WHICH IMPROPERLY AFFECTED ITS JUDGMENT OF GRANTING THE DEFENDANT RELIEF.
POINT 6
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO [HAVE] A FAIR TRIAL WHEN THE STATE FAILED TO DISCLOSE EXCULPATORY EVIDENCE TO THE GRAND JURY TO INDICT DEFENDANT O[N] AGGRAVATED SEXUAL ASSAULT AND ATTEMPTED MURDER. PROSECUTION WITHHELD EXCULPATORY EVIDENCE CONTRADICTING CLAIM.
Following review of the record and applicable law, we reject defendant's arguments. We affirm the order denying his PCR petition.
The following facts surrounding defendant's underlying convictions are pertinent to the claims raised in his PCR petition. Defendant pled guilty to attempted murder and criminal sexual contact related to the August 2009 stabbing and sexual assault of a minor female. The victim identified defendant as her assailant, reporting she accepted a ride from defendant, who then "attempted to pull down [her] halter top and grab her breast." When she tried to flee, defendant "pushed her head, striking . . . [it] on the dashboard" and stabbed her "numerous times" in the face and neck. She escaped by jumping out of the moving vehicle.
When these crimes occurred, defendant was on conditional release under New Jersey's Intensive Supervision Program (ISP), for unrelated offenses. The alleged violation of ISP resulted in his immediate incarceration. Defendant was charged in a ten-count indictment.
Developed to address overcrowding in our state prisons, the ISP is "a program of conditional release from custody — a form of intermediate punishment between incarceration and probation — for certain carefully screened non-violent offenders." State v. Abbati, 99 N.J. 418, 433 (1985). Inmates are temporarily introduced back into society "under intensive supervision provided . . . their return will result in a positive social adjustment and will not jeopardize the public's safety." State v. Clay, 230 N.J. Super. 509, 513 (App. Div. 1989) (citation and internal quotation marks omitted), aff'd, 118 N.J. 251 (1990). Noncompliance with ISP protocol results in immediate reincarceration. Id. at 514-15.
Defendant entered his guilty pleas pursuant to a negotiated plea agreement, which included the State's agreement to recommend an aggregate sentence of sixteen years, subject to the 85% period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently to his existing sentence, and not seek an extended term sentence, N.J.S.A. 2C:44-3, despite defendant's three prior qualifying convictions. The State also agreed to dismiss all other charges. In addition to the sentence set forth in the plea agreement, defendant was ordered to pay the victim's $150 medical costs.
We considered defendant's appeal challenging the imposed sentence on this court's Excessive Sentence Oral Argument calendar. R. 2:9-11. Defendant argued the sentence was manifestly excessive and he was wrongfully required to pay restitution, as represented by the $150 medical costs. The sentence was affirmed and certification was not sought. State v. Washington, No. A-1449-10 (App. Div. Mar. 8, 2012).
Defendant filed a pro se PCR petition, asserting trial counsel was ineffective during sentencing. At the PCR hearing, defense counsel argued the application of aggravating factor two was erroneous, the sentencing judge "double count[ed]" factors, and trial counsel failed to argue defendant "led a law abiding life for a substantial period of time, as he had no prior convictions for violent crimes," N.J.S.A. 2C:44-1(b)(7). Defendant also sought retroactive application of gap-time credits. He requested an evidentiary hearing, alleging facts supporting his claim existed outside the record.
The PCR court denied defendant's petition, finding he failed to prove counsel's performance was deficient or the outcome of the proceeding would have been different but for counsel's alleged errors. Even assuming counsel raised every issue presented in defendant's petition, the judge concluded defendant's sentence was extremely lenient and defense counsel "did a . . . good job negotiating this [plea] down to [sixteen] years . . . ." Defendant's claim for gap-time credits was also rejected. The court found defendant's ISP violation negated his eligibility for credits. This appeal ensued.
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.
New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove:
First, . . . that counsel's performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "Reasonable competence does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
To meet the second prong, "[a] 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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
In the context of a PCR petition challenging a guilty plea, the first Strickland prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid.
In our review, we defer to the motion judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." (citation and internal quotation marks omitted)). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.
In this matter, defendant first maintains his trial counsel "failed to argue effectively on his behalf at sentencing . . . neglect[ing] to advance several significant mitigating factors in support of a lesser sentence," ignoring his obligation to meaningfully do so. Defendant notes counsel did not present argument, but rather stated only, "move for sentence." He contends mitigating factors one (defendant's conduct did not cause serious harm), six (defendant provided restitution), and seven (defendant's prior convictions were not violent) were applicable. N.J.S.A. 2C:44-1(b)(1), (6), (7). Also, he suggests the trial judge inappropriately applied aggravating factor two (the gravity and seriousness of harm inflicted on the victim, recognizing the victim's youth). N.J.S.A. 2C:44-1(a)(2).
Here, we reject these claims and conclude, as did the PCR judge, defendant failed to prove either prong required by Strickland and Fritz. Notably, defendant faced a minimum extended term of thirty years on the attempted murder and sexual assault charges alone. See N.J.S.A. 2C:43-6(a)(1), -7(a)(1). As part of his plea, the State agreed not to seek an extended term. Nothing in the record suggests the trial judge would have approved a lesser sentence than the recommended sixteen years.
Importantly, we find no evidential support for application of the alleged mitigating factors. Defendant repeatedly stabbed and sexually assaulted the minor victim. The mere suggestion his conduct did not cause serious harm is preposterous. Further, he has a prior criminal record obviating application of factor seven. Finally, ordered payment of the victim's modest medical cost unaccompanied by factual support showing defendant's inability to pay, defeats this claim. In addition, the alleged misapplication of aggravating factor two was considered and rejected on appeal.
We also find unfounded the claim for gap-time credits for the period of imprisonment upon revocation of ISP. To be eligible for gap-time credit, a defendant must establish, among other things, "both offenses occurred prior to the imposition of the first sentence." State v. Hernandez, 208 N.J. 24, 38 (2011) (citation and internal quotation marks omitted). Here, the new offenses were committed well after defendant had been sentenced on his prior convictions. He was returned to jail after violating ISP, and was not subject to a new sentence; he merely continued his previously imposed sentence.
We discern no reason to interfere with the "pragmatic dimension [of] the PCR court's determination" to deny the request for a hearing as no basis established counsel's representation was ineffective. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Accordingly, there is no merit to the argument stating an evidentiary hearing was required. See Preciose, supra, 129 N.J. at 462; R. 3:22-10(b), (e).
Finally, the remaining arguments presented by defendant in his pro se brief, not otherwise discussed in our opinion, were found to lack sufficient merit to warrant specific consideration. 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 APPELLATE DIVISION