STATE OF NEW JERSEY v. PETER MAZZA, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3563-03T13563-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER MAZZA, JR.,

Defendant-Appellant.

___________________________________

 

Submitted November 2, 2005 - Decided January 19, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

97-06-1156-I.

Shaun R. Schlich, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant, Peter Mazza, appeals from the denial of his motion for post-conviction relief. In October 1998, a jury found defendant guilty of first-degree aggravated arson for hire, N.J.S.A. 2C:17-1d (count one). The jury also found defendant guilty of first-degree conspiracy to commit aggravated arson for hire, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:17-1d (count two); second-degree aggravated arson of a building, N.J.S.A. 2C:17-1a (count three); and third-degree reckless arson, N.J.S.A. 2C:17-1b(2) (count four). A March 1996 fire destroyed the townhouse in Sea Bright that belonged to defendant's uncle. Defendant received an extended-term sentence of fifty years as a persistent offender, with sixteen years of parole ineligibility. His conviction and sentence were affirmed on direct appeal.

On appeal, defendant contends that he "made a prima facie showing of ineffective assistance of counsel sufficient to compel an evidentiary hearing pursuant to R. 3:22-10." Specifically, defendant contends that his attorney was ineffective in (1) failing to spend sufficient time with him and (2) failing to advise him respecting the benefits of the State's plea offer: thirty years with a fifteen-year period of parole ineligibility. Defendant also contends that his attorney did not have sufficient information about eleven other pending indictments (which would have been packaged with the plea agreement offered), and failed to advise him of the certainty of his conviction by a jury (in light of his own statements to the police that would be admitted at trial).

Judge Francis P. DeStefano clearly explained his reasons for denying defendant's motion. The judge applied the correct Strickland/Fritz standard to conclude that "[t]he defendant has not made out a prima facie case for ineffective assistance of counsel, as such, the Court does not render, does not see the need for an evidentiary hearing . . . ."

The judge reached that conclusion based upon this reasoning:

In the colloquy held before the Miranda Hearing, the trial judge informed the defendant that no further plea negotiations would be entered into after that day, and that his exposure would far exceed the plea offer, and that the State intended to seek an extended term and that since some or all of his offenses occurred while on bail, he would face the presumption of consecutive sentences.

The Judge further stated that the Court would be hard pressed not to grant an extended term and that Mr. Mazza faced a true risk. Defense counsel requested a conference with this client which was granted. And again mentioned that consecutive sentences were mandated. The defendant, after consulting with his attorney, rejected the offer, the plea offer.

The defendant was fairly warned that he faced extended term sentencing and potential consecutive sentences. He stated through counsel that he would accept 20 over 10. So it is also safe to presume that he understood the nature of a parole disqualifier. The Court and the defense attorney, defendant's attorney explained the defendant's options and he chose not to accept the plea agreement.

. . . .

The Court grants that an attorney's gross misadvice as to sentencing exposure which causes a defendant to reject a plea he otherwise would have accepted, is a grounds for post conviction relief. State [v.] Taccetta[,] 351 [N.J. Super.] 196 [(App. Div.), certif. denied, 174 N.J. 544 (2002)].

However, unlike that case, defense counsel, and indeed the Court itself informed Mr. Mazza of exactly the sort of exposure he was facing on a first degree charge with extended term sentencing. His belated assertion that he should have accepted the plea sentence, is not sufficient to upset his sentence.

 
We affirm, substantially for the reasons stated by Judge DeStefano on the record on February 4, 2005.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

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A-3563-03T1

January 19, 2006