STATE OF NEW JERSEY v. DANIEL SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2051-08T42051-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL SCOTT,

Defendant-Appellant.

__________________________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 06-02-0164 and 06-02-3426.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z. Hussain, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel Scott appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN BARRING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.

POINT TWO

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO REQUEST THAT THE COURT SENTENCE DEFENDANT TO A TERM OF STATE PRISON LESS THAN THE MAXIMUM ALLOWED UNDER THE PLEA AGREEMENT AND FAILED TO RAISE APPROPRIATE MITIGATING FACTORS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant pled guilty to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2). Pursuant to the plea bargain, the remaining six counts of the indictment were to be dismissed, and the State agreed to recommend a maximum sentence of eleven years in prison with a four-year period of parole ineligibility. Defendant agreed to waive the filing of a motion by the State to permit the imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). Defendant provided a full factual basis for his guilty plea; indicated that he understood all the rights he waived by pleading guilty; acknowledged truthfully completing the plea form with the assistance of counsel; understood he could be sentenced to an extended term of imprisonment; waived the filing of a formal motion by the State in that regard; and understood the sentence recommendation.

On the day of sentencing, defendant sought an adjournment to allow him to undergo an arthroscopic procedure on his knee. Defendant supplied the judge with minimal information regarding the extent of the surgery and whether it was immediately necessary, or simply diagnostic in nature. The judge denied the request.

Defense counsel asked the judge to impose the sentence contemplated by the plea bargain. Defendant himself asked the court to impose a lesser maximum term of "nine with a four." The judge responded by noting an extended term was mandatory, and the "minimum would be ten . . . if [she] w[as] so inclined." She then reviewed defendant's background, noting that he was fifty years old and had some "health issues," that the amount of cocaine involved was "18 grams," and that he had previously completed an in-patient drug treatment program, "but relapsed shortly afterward." She reviewed defendant's prior criminal history that included a robbery conviction in 1974, and four prior drug convictions. The judge observed that the last drug conviction, in 1999, resulted in a probationary sentence that defendant had not "taken advantage of," as reflected by his re-involvement leading to the current offense. The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), and "[o]n the mitigating side," defendant's "employment history." Concluding that the "aggravating factors substantially outweigh[ed] the mitigating" factors, the judge sentenced defendant in accordance with the plea agreement. The record does not reveal that any direct appeal was filed by defendant.

On December 17, 2007, eight months after sentencing, defendant filed a pro se PCR petition. The sole issue defendant raised was that his sentence was excessive. Appointed PCR counsel filed a supplemental brief alleging that trial counsel was ineffective because he failed to request that the judge impose a lesser sentence within the terms of the plea bargain.

A hearing was held on defendant's PCR petition before a different judge on August 5, 2008. The PCR judge succinctly summarized defendant's arguments. Noting that the trial judge considered defendant's request for a maximum term of ten years and rejected it, the PCR judge concluded that defendant had not demonstrated any "prejudice" because even if defense counsel had advanced an argument for a lesser sentence, "there would not have been any different result." Taking further note of the trial judge's observations that defendant's sentence exposure was significantly greater than eleven years, the PCR judge concluded that trial counsel may have strategically rejected making any further argument because "a judge can reject a plea agreement and say this is too lenient under the circumstances . . . ."

Defendant also contended that trial counsel was ineffective in failing to argue that his incarceration would cause "an excessive hardship." PCR counsel noted that defendant needed knee surgery, had a "pre-existing kidney condition" requiring dialysis and eventual kidney replacement, and would lose the opportunity to have that surgery as a result of being in prison. PCR counsel argued that trial counsel could have presented the arguments more vigorously, and defendant might have been sentenced to "a lesser term . . . the mandatory minimum being the 10 years with the mandatory stipulation being the three years, not the four."

The PCR judge rejected these arguments, concluding that it was not "a serious professional error for [trial counsel] not to make an argument that would have been futile in the first place." He denied defendant's petition.

Turning to the issues presented on appeal, we need not dwell on the first point raised by defendant. It is clear that the PCR judge did not deny the petition on procedural grounds. The argument lacks sufficient merit to warrant any further discussion. See R. 2:11-3(e)(2).

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. A defendant must show "a reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. In the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial". State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Obviously, defendant has never asserted that he would not have pled guilty if he knew his attorney would concede the reasonableness of the plea bargain, the terms of which he has acknowledged exposed him to the sentence he actually received. He has consistently sought only a downward modification of his sentence. That is reason enough to deny this appeal.

Nevertheless, turning to the merits of defendant's claim, we find the argument unavailing. As the PCR judge aptly observed, defendant's personal request for a more lenient sentence was considered and rejected by the trial judge. She appropriately considered the seriousness of the offense, and the generosity of the plea bargain. The trial judge considered defendant's employment history and his medical problems before imposing her sentence. Defendant has failed to demonstrate any possibility, much less a "reasonable probability[,]" that had his trial counsel advanced a more vigorous argument at sentencing, the outcome would have been altered in any way.

Affirmed.

 

The judge, prosecutor, and PCR counsel engaged in a lengthy discussion regarding the plea agreement vis- -vis the so-called Brimage guidelines. See State v. Brimage, 153 N.J. 1 (1997). The prosecutor contended that a four-year period of parole ineligibility was required under the guidelines. He further argued that the maximum term should therefore have been twelve years, since N.J.S.A. 2C:43-6(f) required the minimum mandatory term to be one-third of the maximum sentence. He contended that the State had exercised its discretion under the guidelines by agreeing to a maximum sentence of eleven years. We need not address the issue because it is clear that the trial judge considered her ability to impose a maximum sentence of ten years, without regard to the Brimage guidelines, and rejected the possibility.

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A-2051-08T4

January 26, 2010