STATE OF NEW JERSEY v. LEON CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1558-08T41558-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEON CLARK,

Defendant-Appellant.

_____________________________

 

Submitted April 13, 2010 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1569.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leon Clark appeals from the July 29, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

On March 30, 2001, an Essex County Grand Jury charged defendant under Indictment No. 01-03-1451 with second-degree possession of a weapon (handgun) by a convicted felon, N.J.S.A. 2C:39-7b. On April 6, 2001, the Grand Jury charged defendant under Indictment No. 01-04-1569 with three counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one, five, and nine); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two, six, and ten); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts three, seven, and eleven); three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (counts four, eight, and twelve); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count fourteen); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count fifteen); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count sixteen).

The State first proceeded to trial on Indictment No. 01-04-1569. Prior to trial, the State dismissed counts one and five. The jury found defendant not guilty on count nine, but guilty of all remaining charges. However, on counts two, six, and ten, the jury found defendant guilty of the lesser-included offense of fourth-degree aggravated assault, and on count sixteen, the jury found defendant guilty of the lesser-included disorderly persons offense of resisting arrest. On the following day, the same jury found defendant guilty of the single charge under Indictment No. 01-03-1451.

On June 18, 2002, the trial court granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and the single non-statutory mitigating factor of defendant's relative youth, the court sentenced defendant on his conviction of first-degree robbery on count eleven of Indictment No. 01-04-1569 to an extended-term sentence of thirty-five years of imprisonment, subject to an 85% period of parole ineligibility on the first twenty years of the sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed concurrent sentences on all other convictions. The sentences imposed on counts three and seven were subject to an 85% parole disqualifier pursuant to NERA; and the sentences imposed on counts two, three, six, seven, and ten, and on the first twenty years on count eleven were subject to the minimum parole disqualifier of one-third of the base term pursuant to the Graves Act, N.J.S.A. 2C:43-6c. Contrary to the court's order that all sentences were to run concurrent, the judgment of conviction indicated that the sentence imposed on count sixteen for the disorderly persons conviction of resisting arrest ran consecutively.

On direct appeal, defendant challenged the trial court's imposition of a discretionary extended-term sentence on count eleven, contending that it violated the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In an unpublished opinion, we affirmed the convictions and sentences, but remanded to correct the judgment of conviction to indicate that the sentence imposed on count sixteen was to run concurrent to the sentence imposed on count eleven, not consecutive. State v. Clark, No. A-6118-02 (App. Div. February 6, 2006). On August 8, 2006, the Supreme Court granted defendant's petition for certification and remanded the matter for re-sentencing in light of the Court's then recent decision in State v. Pierce, 188 N.J. 155 (2006). State v. Clark, 180 N.J. 265 (2006).

On August 23, 2007, defendant filed a pro se petition for PCR, alleging that he was denied effective assistance of trial counsel. Assigned counsel filed a supplemental brief in support of defendant's petition, arguing that defendant's trial attorney had failed to inform defendant of the ramifications of exercising his right to testify in his own defense, failed to argue certain mitigating sentencing factors, and failed to prepare and pursue defendant's alternative theory in defending the charges. PCR counsel also contended that the sentence was excessive.

On July 29, 2008, Judge Cronin entered an order supported by an oral decision denying defendant's PCR petition without an evidentiary hearing. Following the court's decision denying the petition, the court re-sentenced defendant on count eleven pursuant to the Supreme Court's remand and imposed the same discretionary extended-term sentence. The court also corrected the judgment of conviction to specify that the sentence imposed on count sixteen is to run concurrent with the sentence imposed on count eleven.

On appeal, defendant argues:

POINT I.

COUNSEL'S LACK OF APPLICATION TOWARD MITIGATION OF DEFENDANT'S SENTENCE [CONSTITUTED] INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTIION RELIEF.

POINT II.

DEFENDANT RECEIVED AN ILLEGAL SENTENCE AND IS ENTITLED TO CORRECTION ON POST CONVICTION RELIEF.

POINT III.

REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICITION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cronin in his oral decision of July 29, 2008. Nevertheless, we add the following comments.

In Point II, defendant argues that the PCR court erred in rejecting his argument that the thirty-five year extended-term sentence was excessive on the grounds that the argument was procedurally barred as having previously been raised on direct appeal or should have been raised on direct appeal. Because defendant was re-sentenced on count eleven pursuant to the Court's Pierce remand, we considered defendant's argument that the trial court erred in rejecting his excessive sentence argument as moot. We consider the argument as a direct appeal from the July 29, 2008 amended judgment of conviction imposing the extended-term sentence.

Defendant contends that he was "convicted for a series of third-degree burglaries" and that the parole disqualifier imposed on those sentences were excessive and illegal. Defendant also contends that the "six consecutive terms" he received "is manifestly unjust for third[-]degree crime[s] involving no injury or threat." These contentions are patently meritless. Defendant was not convicted of three third-degree burglaries, but rather of three counts each of first-degree robbery, second-degree aggravated assault, and third-degree terroristic threats. Not only did defendant threaten the three victims with the handgun, but the gun discharged during the robberies.

 
Affirmed.

On dismissal of counts one and five, the court directed that the counts be renumbered. Because the numbering of the counts in the judgment of conviction is in accordance with the numbering of the counts as originally charged in the indictment, we refer to the counts as they were originally numbered.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

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9

A-1558-08T4

 

May 6, 2010