STATE OF NEW JERSEY v. JASON SPECCHIO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0141-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON SPECCHIO,
Defendant-Appellant.
________________________________
Submitted: April 28, 2010 - Decided: May 12, 2010
Before Judges Axelrad and Espinosa.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment Nos. 05-04-1041, 05-04-0829 and
05-04-0890.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Brian O'Reilly,
Designated Counsel, of counsel and on the
brief).
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Jason Specchio appeals from the June 27, 2008
order of the Law Division denying his petition for post-
conviction relief (PCR). He alleged, in part, ineffective
assistance of trial counsel in failing to inform him of the
penal consequences of his plea, failing to argue for a sentence
concurrent to the one he was serving, and failing to argue for
the application of certain mitigating factors; and ineffective
assistance of appellate counsel in failing to file a petition
for certification. Defendant also challenged his sentence as
illegal. We affirm.
On July 18, 2005, defendant pled guilty pursuant to a plea
agreement that covered charges in three indictments. Defendant
pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1
(count one, Indictment No. 05-04-1041); third-degree theft by
deception, N.J.S.A. 2C:20-4 (count one, Indictment No. 05-04-
0829); fourth-degree uttering a forged instrument, N.J.S.A.
2C:21-1a (count two, Indictment No. 05-04-0829); and second-
degree eluding, N.J.S.A. 2C:29-2b (count one, Indictment No. 05-
04-0890). On October 28, 2005, Judge Neafsey sentenced
defendant, pursuant to the plea agreement, to an aggregate ten-
year term subject to the No Early Release Act (NERA) to run
consecutive to the sentence defendant was serving.1 Pursuant to
the plea agreement, the State dropped the remaining charges
against defendant and all charges against co-defendant,
1
When defendant committed the offenses that are the subject of
this appeal, he was on bail awaiting sentencing on a prior plea
to various offenses. The same trial attorney represented
defendant during each of the two plea agreements. Judge Neafsey
presided over all of the proceedings.
A-0141-08T4
2
defendant's girlfriend. Defendant filed an appeal of his
sentence, which was placed on our excessive sentence oral
argument (ESOA) calendar. We heard argument on May 31, 2007 and
affirmed. State v. Specchio, No. A-6265-05T4 (App. Div. June 4,
2007).
This PCR petition ensued and was denied by Judge Neafsey on
June 27, 2008, in the presence of defendant, but without an
evidentiary hearing. The judge found defendant's sentencing
claims were procedurally barred pursuant to Rule 3:22-5, because
defendant had challenged the excessiveness of his sentence on
direct appeal and that challenge had been rejected on its
merits. The judge further found the sentence was not illegal as
the ten-year term on armed robbery was the lowest term for a
first-degree offense. Judge Neafsey was satisfied trial counsel
"made a professionally competent sentencing argument on the
defendant's behalf" and argued mitigating factors which the
court considered, along with defendant's comments, thus
informing the court that defendant's criminal tendencies arose
from a drug problem. The court had concluded, however, that
such drug abuse was not a mitigating factor for a crime of
violence such as armed robbery, and that the offenses committed
by defendant were separate acts of violence from the six prior
indictments that he had been sentenced on, thereby necessitating
A-0141-08T4
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the imposition of a consecutive term. Accordingly, the PCR
judge concluded that defendant's ineffective assistance of trial
counsel claim failed to satisfy either prong of the
Strickland/Fritz test. See Strickland v. Washington,
466 U.S. 668, 687, 694,
104 S. Ct. 2052, 2064, 2068,
80 L. Ed. 2d 674,
693, 698 (1984) (In order to prevail on a claim of ineffective
assistance of counsel, a defendant must meet the two-prong test
of establishing both that: (1) counsel's performance was
insufficient and he or she made errors that were so serious that
counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution and (2) the
defect in performance prejudiced defendant's rights to a fair
trial such that there exists a "reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different."). See also State v.
Fritz,
105 N.J. 42, 58 (1987) (adopting the Strickland test in
New Jersey); State v. Preciose,
129 N.J. 451, 462-63 (1992) (To
establish a prima facie claim of ineffectiveness of counsel
within the Strickland/Fritz test warranting an evidentiary
hearing, a defendant must demonstrate a reasonable likelihood
that his or her claim will ultimately succeed on the merits.).
The PCR judge further rejected defendant's claim of
deficiency by the Public Defender's Appellate Office, noting
A-0141-08T4
4
that appellate counsel informed defendant prior to the excessive
sentence hearing that no further appeal would be filed on his
behalf but that he had a right to file his own petition to the
Supreme Court for further review. The judge also found that
defendant failed to demonstrate the existence of cumulative
errors either by the court or counsel, or any other reason to
reduce the negotiated sentence that was lawfully imposed and
upheld on appeal. This appeal ensued.
Defendant essentially raises the same arguments on appeal,
asserting: (1) trial counsel failed to inform him of the penal
consequences of his plea, failed to argue for a sentence
concurrent to the one he was serving, and failed to argue for
the application of certain mitigating factors; (2) he was denied
the effective assistance of appellate counsel and was entitled
to an evidentiary hearing on this issue; (3) the errors by the
court and counsel were cumulative, requiring reversal; and (4)
the trial court erred in accepting defendant's plea without
explaining to him its full penal consequences, namely that the
sentence on these charges would be consecutive to the sentence
defendant was serving on the other charges. Defendant asserts,
for the first time on appeal, that the trial court committed
plain error in failing to merge his convictions for uttering a
forged instrument and theft by deception, and that he was denied
A-0141-08T4
5
effective assistance of PCR counsel who failed to fully present
meritorious arguments with appropriate citations to the record.
Based on our review of the record and applicable law, we
are satisfied defendant failed to make a prima facie showing of
ineffective assistance of trial, appellate, or PCR counsel
within the Strickland/Fritz test warranting an evidentiary
hearing. We are further satisfied that all of defendant's
arguments raised on PCR are either procedurally barred or
without substantive merit. Defendant's arguments raised on
appeal were more than adequately addressed by the PCR judge and
R. 2:11-3(e)(2). We
do not warrant additional discussion.
affirm substantially for the reasons articulated by Judge
Neafsey in his oral opinion. We add the following brief
comments.
The plea agreement and colloquy on the record clearly
indicate that defendant was well aware this package of
concurrent sentences would run consecutively to the current
sentence he was serving. Moreover, defendant's new argument
regarding merger is both procedurally barred and lacking in
merit. This court does not entertain arguments raised for the
State v. Robinson,
200 N.J. 1, 20 (2009);
first time on appeal.
Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
However, we are satisfied from our review of the record that the
A-0141-08T4
6
issue was fully capable of being raised on direct appeal and is
therefore procedurally barred pursuant to Rule 3:22-4.
Moreover, it appears from the record that defendant waived
merger of his convictions for uttering a forged instrument and
theft by deception when he entered into the negotiated plea
agreement which, incidentally, provided for the imposition of
See State v. Crawley,
149 N.J. 310, 312-13
concurrent terms.
(1997) (a defendant can waive his right to merger of offenses as
part of a plea agreement and, where such a waiver is voluntary
and intelligent, the defendant will be prohibited from
challenging the waiver on appeal).
Affirmed.
A-0141-08T4
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