STATE OF NEW JERSEY v. CHRISTOPHER BURNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1133-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER BURNS,

Defendant-Appellant.

_________________________________________________

May 5, 2011

Submitted February 3, 2011 - Decided

Before Judges Wefing and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 05-11-2472.

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

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 10, 2005, defendant, Christopher Burns, held up at gunpoint an employee of a Dollar Tree Store where Burns was also employed as the employee, his boss, sought to deposit the day's receipts at a Wachovia Bank in Ocean Township. The gun was supplied by co-defendant Willie Dixon, who also acted as lookout and was to share in the proceeds of the robbery. Upon apprehension, Dixon confessed, displaying contrition. It does not appear that defendant admitted to the crime except during his plea. At sentencing, he sought to disavow his acts.

Dixon was offered a plea to an accusation of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1, with a sentence of seven years of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge, taking into account Dixon's lack of criminal record, his strong family support, his contrition and cooperation with the police, the fact that he had just lost his job, his need for money to support his two children, and his use of marijuana, sentenced Dixon to five years, subject to NERA.

Defendant Burns was offered a plea to first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, with a sentence of fifteen years in prison, which the judge agreed to reduce to ten years, subject to NERA. The judge stated that the reduced sentence was "based on the sentence that I gave to your codefendant." Additionally, he stated that he had taken into account defendant's youth, his lack of a significant criminal history, and the fact that his sentence was subject to NERA. Defendant took the plea offer.

At sentencing, the judge noted that defendant had some prior juvenile and municipal criminal involvement, he was employed, he had not completed high school, and he was married and had one child. After finding aggravating factor nine (the need to deter) and mitigating factors three (that defendant acted under strong provocation, consisting of financial difficulties) and seven (his lack of a prior indictable criminal history), N.J.S.A. 2C:44-1a(9) and -1b(3) and (7), and finding that the aggravating factor "substantially" outweighed the mitigating factors, the judge imposed a ten-year sentence subject to NERA on the armed robbery charge and a concurrent sentence of five years in prison with a three-year period of parole ineligibility on the weapons conviction.

Defendant appealed his sentence, and his appeal came before us on an excessive sentence, oral argument calendar, at which time defense counsel, arguing disparate sentencing, sought a second-degree sentence of five years subject to NERA. We implicitly declined to accept counsel's argument, noting that Burns and Dixon pled guilty to different crimes of different degrees. Additionally, to impose a second-degree sentence, the judge would have had to be convinced that the mitigating factors clearly and convincingly outweighed the aggravating factors, which did not occur in this case. However, we remanded the matter for merger of the weapons conviction into that for armed robbery.

Defendant then moved for post-conviction relief (PCR), arguing that trial counsel had been ineffective in failing to argue for a reduction of the robbery charge to a second-degree crime, in failing to request merger of the robbery and weapons convictions at sentencing, and in failing to address sentencing disparity. PCR was denied by the judge without a hearing.

In doing so, the judge rejected the argument that counsel had been ineffective in failing to seek a downgrade in the robbery charge, ruling that the argument was essentially one of an excessive sentence that could only be addressed on direct appeal. The judge also rejected defendant's merger argument as moot, noting that we had ordered merger and it had occurred. Additionally, the judge noted that defendant's sentencing disparity argument had in fact been raised before us, and that it was implicit in the record that we had determined that Dixon and Burns were not similarly situated. Because the issue was thus previously decided, it was barred on PCR. As a final matter, the judge found that defendant's argument that additional mitigating factors should have been found and that counsel was ineffective in failing to press that argument was an excessive sentencing argument that could only be raised on direct appeal.

Turning to the merits, the judge noted that to downgrade a charge, the judge must be clearly convinced that the mitigating factors substantially outweighed the aggravating factors, and such was not the case here. Thus, even if counsel had sought a downgrade, it would not have been granted. Further, the judge found no prejudice to defendant as the result of the alleged ineffectiveness of counsel at sentencing, since defendant received the lowest sentence possible for a first-degree crime. He similarly was not prejudiced by counsel's failure to seek merger of the two convictions, since they had been merged on remand. The judge also determined that counsel was not ineffective in not arguing sentencing disparity more strongly, since Burns's and Dixon's crimes were not substantially similar, and thus similar sentences were not required. The judge rejected defendant's argument that trial counsel had failed to sufficiently emphasize the differing levels of participation in the crimes at sentencing, since defendant had already been promised the lowest possible first-degree sentence. With respect to defendant's argument that counsel should have raised a defense of duress, the judge noted counsel's statement during sentencing that the defense had been previously discussed and that defendant had agreed with counsel's conclusion that the defense was meritless. The judge also found that trial counsel had adequately developed the record in support of mitigating factors.

On appeal, defendant raises the following arguments:

POINT I

TRIAL COUNSEL'S FAILURE TO REQUEST A DOWNGRADE DURING PLEA NEGOTIATIONS OR AT SENTENCING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST-CONVICTION RELIEF.

POINT II

COUNSEL'S FAILURE TO ARGUE DISPARITY IN SENTENCING BETWEEN DEFENDANT AND HIS CODEFENDANT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST-CONVICTION RELIEF.

POINT III

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

We affirm.

I.

We decide this matter pursuant to the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Thus, we will order PCR only upon a showing by defendant that "'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment,'" and he also demonstrates that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698). We indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. An evidentiary hearing is required only when defendant has made out a prima facie case of ineffective assistance and resolution of the issue requires consideration of facts that lie outside of the record. State v. Preciose, 129 N.J. 451, 462 (1992).

With these principles in mind, we turn to defendant's first argument that counsel was ineffective in not requesting a downgrade of the charges against him to ones of the second degree and in not requesting a similar downgrade at time of sentencing. However, defendant has offered nothing that would suggest that a downgraded charge could have been obtained when the facts as recited by the victim demonstrated that defendant, a person he knew well, was the one who held a gun to his head, demanding and obtaining a significant sum of money. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance."), certif. denied, 162 N.J. 199 (1999). Certainly, the prosecutor only envisioned first-degree charges. At the plea colloquy in Dixon's case, the prosecutor stated:

The State has looked at this defendant's [Dixon's] lesser role in the commission of this crime.

You will hear that there was a second actor who was more culpable who the State will be prosecuting on the first-degree armed robbery charge.

Given the strength of the evidence against defendant, we do not find his counsel ineffective in failing to seek a downgrade, and we do not find evidence that, if sought, a downgrade would have been granted. Thus neither of Strickland's prongs has been met.

With respect to a sentencing downgrade, as we observed at argument on appeal of defendant's sentence, such can occur only when the sentencing judge "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the downgrade. R. 2C:44-1f(2). Moreover, a decision to downgrade "in the interest of justice" should be limited to those circumstances in which a defendant can provide "compelling" reasons that are in addition to, and separate from, the mitigating factors that substantially outweigh the aggravating ones. State v. Megargel, 143 N.J. 484, 501-02 (1996). Defendant has not met these exacting conditions. Defendant argues that the fact that he was a first-time offender should have been more heavily weighed. However, that factor was considered in mitigation of sentence by the judge. It thus cannot constitute an additional compelling reason for sentence reduction.

II.

In his second point, defendant argues that counsel's failure to argue disparity in sentencing between defendant and Dixon constituted ineffective assistance of counsel. We reject that argument, as well. In that regard, we first note that the judge was well aware of Dixon's case when he agreed to impose a ten-year sentence on defendant. Indeed, he specifically referred to Dixon in that regard, noting that each had been sentenced at the bottom of the applicable sentencing range. Thus, further argument by counsel was not required and, given the charge to which defendant pled, it would have been futile.

Moreover, defendant's argument with respect to disparity requires a determination that he and Dixon were equally culpable. They were not. Although the record reflects a factual dispute as to who initially suggested that a robbery be committed, and there is no question that Dixon supplied the gun utilized by defendant, there is also no doubt that only defendant knew that the victim would be depositing money at the bank when he did, and it was he who held a gun to the victim's head and took the money. Consideration of these facts led the State to charge Dixon with second-degree conspiracy, whereas defendant was charged with first-degree armed robbery.

Sentencing disparity is of concern only when widely differing sentences are imposed upon "similar defendants." State v. Roach, 146 N.J. 208, 233, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). In this case, Dixon and Burns were not so similar that disparity is of concern. Their conduct in connection with the robbery differed, and they were charged differently. In the circumstances presented trial counsel was not ineffective in failing to press a disparity argument.

III.

As a final matter, defendant seeks an evidentiary hearing with respect to his claims. However, because he has failed to set forth a prima facie case, such a hearing is not required. Preciose, supra, 129 N.J. at 462.