STATE OF NEW JERSEY v. ERIC HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0801-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC HARRIS,

Defendant-Appellant.

____________________________

May 13, 2011

Submitted November 8, 2010 - Decided

Before Judges A.A. Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0602 and Accusation No. 04-09-1158.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the July 9, 2009 order denying his petition for post-conviction relief (PCR). We affirm the denial of PCR. However, we remand for re-sentencing on one count.

In September 2004, defendant was charged in an accusation with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2); third-degree theft, N.J.S.A. 2C:20-3(a); and two counts of fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e). He also faced an indictment for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). On September 16, 2004, pursuant to a negotiated plea agreement, defendant pled guilty to one count of first-degree armed robbery and fourth-degree possession of an imitation weapon, as well as the third-degree possession of heroin charge. Defendant gave a factual basis for the robbery charge, in which he acknowledged that he entered an adult bookstore holding a toy handgun "painted black to appear as if it were real," and threatened the proprietor with "the use of force by having a gun." The proprietor then handed defendant money in excess of $900.

On December 10, 2004, defendant was sentenced to a term of ten years with a parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), on the armed robbery charge; a concurrent four-year term on the possession of an imitation firearm charge1; and a concurrent four-year term on the drug charge. Defendant did not file a direct appeal from his convictions and sentence.

On or about October 14, 2008, defendant filed a pro se PCR petition supported by a letter brief prepared by an inmate paralegal. Defendant claimed ineffective assistance of trial counsel for failure to present mitigating factors on his behalf at sentencing; he also asserted a right to a jury trial on the "sentence enhancement" under NERA. PCR counsel was assigned and filed an amended PCR petition, claiming that plea counsel "should have urged the court to consider mitigating factor[s] 2, 4, and 12[,]", namely that "defendant did not contemplate that his conduct would cause or threaten serious harm"; "[t]here were substantial grounds tending to excuse or justify . . . defendant's conduct, though failing to establish a defense"; and "[t]he willingness of . . . defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(2), (4) and (12). Had these mitigating factors been advanced, defendant contended, "the court's sentence might have been more favorable." Defendant requested an evidentiary hearing.

On July 9, 2009, the PCR judge heard oral argument and then rendered a decision from the bench denying the petition. The judge noted that at sentencing, counsel had "argued for a lower degree [of sentence] based upon [defendant's] drug addiction and remorse[,]" but the judge had "rejected this argument noting that [defendant] had . . . already received significant benefits as a result of the plea agreement."

The judge found that counsel could have argued factors two and four and that factor twelve "may have been argued but would not have been accepted." "Nonetheless, on the record before it," the judge found that "even had that been done by counsel, it would not have changed the outcome." The judge concluded that the "record below does not support" a finding that "had [defendant's] prior attorney . . . argued for these mitigating factors he may have received a lower sentence. . . . The [sentencing c]ourt could not have legally justified a lowering by a degree of the charges to which [defendant] pled."

Therefore, even if "there was some deficiency in [counsel's] performance," the judge stated that he was "not satisfied that the case was [a]ffected by any such deficient performance." Because defendant failed to present a prima facie case "as to ineffective assistance of counsel that would have undermined the outcome or . . . the reliability of the proceeding[,]" the judge denied defendant's request for an evidentiary hearing.

On appeal, defendant presents the following contentions for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT SENTENCING SATISFIED THE PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST AND THE RESULTING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG OF THE TEST.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.2

Having considered these contentions in light of the record and the controlling legal principles, we conclude they are without merit. We concur with the PCR judge's conclusion that even if counsel had advanced the three mitigating factors at issue, the sentencing judge would not have been persuaded to sentence defendant to a lower term.

N.J.S.A. 2C:44-1(f)(2) provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

Thus, a judge considering a lower sentence pursuant to this statute must engage in a two-step process:

[F]irst, the court must be "clearly convinced" that the mitigating factors "substantially" outweigh the aggravating ones, and second, the court must find that the "interest of justice" demands that the sentence be downgraded. The reasons justifying a downgrade must be "compelling," and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors.

[State v. Megargel, 143 N.J. 484, 505 (1996).]

We are satisfied that defendant would not have prevailed on this point even if counsel had advanced the mitigating factors in issue. As the PCR judge noted, the record does not support these factors.

First, the mere fact that defendant used an imitation handgun to commit the robbery does not entitle him to invoke mitigating factor two, that he "did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(2). At his plea, defendant specifically acknowledged that he entered the bookstore with "the intention . . . to display force in order to get the proprietor . . . to give [him] money," and that he "threatened the use of force by having a gun, which appeared to be real." His assertion that he "did not contemplate" that he would "cause" the proprietor to feel "threaten[ed]" by the prospect of "serious harm" is devoid of merit.

Second, defendant's history of drug addiction does not constitute "substantial grounds tending to excuse or justify . . . [his] conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). We will not "adopt the proposition that one who demonstrates that the motive for unlawfully acquiring the funds of another was to purchase [drugs] has satisfied th[is] mitigating factor." State v. Ghertler, 114 N.J. 383, 390 (1989).

Mitigating factor twelve, "the willingness of defendant to cooperate with law enforcement officers," N.J.S.A. 2C:44-1(b)(12), is not met merely by a defendant's entry of a guilty plea rather than standing trial. Cf. State v. Dalziel, 182 N.J. 494, 498, 506 (2005) (where the defendant agreed to plead guilty "in exchange for truthful testimony against [a co-defendant,]" the judge's "failure to acknowledge [defendant's] cooperation . . . was error"). As the PCR judge observed, defendant received a "very favorable plea arrangement, which was also noted by the sentencing judge." As the beneficiary of such a favorable plea bargain, defendant is hard-pressed to argue that he "cooperated" within the intendment of mitigating factor twelve.

Therefore, as defendant had no basis to support these three mitigating factors, he could not have established that "the mitigating factors substantially outweigh[ed] the aggravating factors"; nor would he have a basis to assert that "the interest of justice demands" a lower sentence. N.J.S.A. 2C:44-1(f)(2). Thus, he would not have satisfied the two-step process necessary to be sentenced to "a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." Ibid.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

Based upon our careful review of the record, we discern no reason to disturb the PCR judge's ruling. We are satisfied that defendant failed to establish a prima facie case of ineffective assistance of counsel. Even if defense counsel had requested them, none of the mitigating factors defendant asserts is supported by the record. It is a "well-established rule that aggravating and mitigating factors must be supported by credible evidence." Dalziel, supra, 182 N.J. at 505 (citing State v. Roth, 95 N.J. 334, 356-64 (1984)).

Having failed to establish a prima facie case of ineffective assistance of counsel, defendant was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).3

We turn to the issue of defendant's sentence on the fourth-degree offense of possession of an imitation firearm, N.J.S.A. 2C:39-4(e). The maximum sentence for a fourth-degree offense is eighteen months. N.J.S.A. 2C:43-6(a)(4). The plea form that defendant executed at the time he entered his negotiated plea correctly reflects the maximum sentence for this offense. Inexplicably, the sentencing judge imposed a term of four years on this charge. Even more inexplicably, defendant did not object and, to date, no one has raised this issue.

We exercise our "original jurisdiction" and consider the issue, as it "is necessary to the complete determination of [the] matter on review." R. 2:10-5. No further fact finding is necessary in order to resolve this issue. Cf. Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009) (invocation of original jurisdiction under the Rule is inappropriate where it will not "result in a complete determination of the matter on review").

The denial of PCR is affirmed. The sentence on the conviction for fourth-degree possession of an imitation firearm is vacated and remanded for re-sentencing.

1 See further discussion of the sentence on this charge below.

2 As noted, in his original PCR petition, defendant asserted a right to a jury trial "in reference to the sentence enhancement and/or [NERA]." Defendant did not pursue this claim below, however; nor has he addressed it in his appellate brief. We, therefore, deem this issue waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2011).

3 The State argued below, and re-asserts here, that defendant's PCR petition should be denied as time-barred under Rule 3:22-4. The PCR judge rejected this argument, finding that "when dealing with ineffective assistance of counsel claims enforcement of the bar might result in a fundamental injustice." As we have affirmed the denial of relief on the merits, we decline to address this contention.