STATE OF NEW JERSEY v. JOSE MENDOZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0086-05T30086-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE MENDOZA,

Defendant-Appellant.

__________________________________

 

Submitted October 5, 2006 - Decided October 27, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Criminal Part, Hudson County,

Indictment No. 98-04-0674.

John D. Lynch, attorney for appellant.

Stuart Rabner, Attorney General of New Jersey,

attorney for respondent (Steven A. Yomtov, Deputy

Attorney General, of counsel, and on the brief).

PER CURIAM

Defendant Jose Mendoza appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under an indictment with the murder of his wife, N.J.S.A. 2C:11-3(a)(1) or (2), and with possession of a weapon (rifle) for an unlawful purpose, N.J.S.A. 2C:39-4(a). Subsequently, a jury found defendant guilty both of the lesser-included, second-degree offense of reckless manslaughter, N.J.S.A. 2C:11-4, and of the weapon-possession offense. After merging the weapon-possession conviction with the conviction for reckless manslaughter, the judge sentenced defendant to the maximum possible term of imprisonment for the second-degree, reckless-manslaughter conviction, ten years, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In sentencing defendant, the judge found that two aggravating factors applied, that is the risk that defendant would commit another offense and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(3) and (9). Significantly, defendant's trial counsel conceded that the deterrence aggravating factor applied, but argued that three other aggravating factors proposed by the State did not and also that four mitigating factors should be considered. However, following his review of the factors, the judge found that only the mitigating factor set out at N.J.S.A. 2C:44-1(b)(7), the absence of a criminal record, was applicable. The judge then weighed the two aggravating factors against the one mitigating factor and determined that the aggravating factors outweighed the mitigating factor. Accordingly, the judge adjusted the then-presumptive seven-year sentence for the reckless manslaughter conviction upward and imposed the maximum ten-year sentence of imprisonment on defendant.

Defendant appealed, but did not raise as an issue counsel's concession of the deterrence aggravating factor or the sentencing court's consideration of the alcoholism/spousal abuse circumstances in the course of weighing the aggravating and mitigating factors. We affirmed, concluding, among other things, that:

[n]o error is asserted with regard to sentencing provisions that [the] [j]udge did apply. Based on the information provided the judge, his sentence adhered to legislative mandates and did not fall outside the statutory parameters. In addition, the sentence did not violate any constitutional or procedural safeguards.

[State v. Mendoza, A-2713-99T2 ((App. Div. October 22, 2001) at 7-8.]

Defendant then filed a timely PCR petition, claiming that he was denied the effective assistance of counsel at both the trial and appellate levels because trial counsel, without defendant's permission or knowledge, conceded the deterrence aggravating factor at the sentencing hearing and because appellate counsel did not argue on appeal that trial counsel erred in making that "surprise" concession. Defendant also raised an issue under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004), asserting that the sentencing "court's imposition of the maximum sentence with the maximum period of parole ineligibility violated petitioner's [defendant's] federal and state right to prove beyond a reasonable doubt and a jury trial because the aggravating factors were not found by a jury." Defendant's Blakely claim also included the contention that the sentencing court utilized unproven allegations concerning spousal abuse and alcoholism as "shadow aggravating factor[s]" in order to increase the length of defendant's sentence beyond the then-presumptive level.

The PCR judge denied defendant's petition. In doing so, Judge Vazquez noted that trial counsel had argued effectively against two of the other aggravating factors proposed by the State and had also made cogent arguments concerning possible mitigating factors. Thus, the judge reasoned that "[b]y conceding an aggravating factor that was essentially a foregone conclusion [the deterrence aggravating factor] under the circumstances, petitioner's [defendant's trial] counsel was best able to advocate the lesser sentence." Turning to defendant's other argument, the judge noted that our Supreme Court had yet to decide the Blakely issue then before it in State v. Natale, 184 N.J. 458 (2005), and therefore denied defendant's excessive sentence claim but "without prejudice as to the Blakely sentencing argument only."

This appeal ensued, raising the same issues as below, namely:

I. The defendant was denied the effective assistance of counsel constitutionally guaranteed to him at the trial and appellate levels, which should have necessitated the granting of his petition for post-conviction relief.

II. The court's imposition of the maximum sentence with the maximum period of parole ineligibility violated the defendant's federal and state rights because the aggravating factors relied on by the court were implicitly rejected by the jury when they rendered their verdict; accordingly, the motion for post-conviction relief should have been granted.

These issues lack merit. R. 2:11-3(e)(2).

We reject defendant's argument that the PCR judge erred in deciding the issues without convening an evidentiary hearing. It is well-settled that an evidentiary hearing is not required in the absence of a prima facie showing of remediable ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999). Remediable ineffectiveness requires a showing that counsel's performance was deficient as measured by the community standard and that the defective performance prejudiced defendant's right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). No such showing was made here.

In this case, the sentencing judge clearly indicated that:

[a]ggravating Factor 9 [the deterrence factor] speaks volumes in this case. It clearly calls out for a sentence to be imposed by this Court that sets out an unequivocal deterrent message, not only to [defendant] Mr. Mendoza but to other people in society who may be facing similar circumstances as Mr. Mendoza is facing today or may be contemplating or are in domestic violence abusive situations where this can happen again. So, Aggravating Factor 9 is a clear factor to be found in this case.

. . . .

As I said earlier, there is an overwhelming need in this case to send a clear unequivocal message of deterrence not only with respect to Mr. Mendoza but with other people similarly situated.

As is apparent, the sentencing judge strongly believed that the deterrence aggravating factor applied to defendant's situation. Indeed, because the "need for public safety and deterrence increase proportionally with the degree of the offense," State v. Carey, 168 N.J. 413, 426 (2001), the judge did not patently err in finding that the deterrence aggravating factor applied to defendant's second-degree offense. Given its obvious relevance then, trial counsel elected to concede that aggravating factor in favor of addressing other aggravating and mitigating factors whose applicability was more open to persuasive argument. In this regard, counsel convinced the court that at least one mitigating factor applied and that two aggravating factors advanced by the State did not. Under the circumstances, we reject defendant's argument that either trial or appellate counsel was ineffective. In any event, even if counsel's concession had been defective, we think it plain, in light of the proper application of the deterrence factor, that the asserted deficiency was harmless and therefore not remediable.

Defendant's remaining argument, based on Blakely, fares no better. The Blakely holding that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, does not apply to this matter. State v. Natale, 184 N.J. 458, 494 (2005). In Natale, the Court held that its decision would be applied with pipeline retroactivity, that is, to defendants with cases on appeal as of the date of the decision, August 3, 2005, who had raised Blakely claims at trial or on direct appeal. Ibid. Here, Blakely arguments were not raised at sentencing or on direct appeal. In fact, defendant did not have an appeal pending in August 2005. Accordingly, this matter is not in the Blakely pipeline.

 
The order appealed from is affirmed.

Significantly, in considering the aggravating and mitigating factors, the judge discussed the "two pillars" upon which defendant's crime rested: defendant's alcoholism and his commission of prior acts of spousal abuse.

(continued)

(continued)

7

A-0086-05T3

 

October 27, 2006