STATE OF NEW JERSEY v. MIKE ABUROMI a/k/a MOHAMMED ABUROMI 2012 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0460-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIKE ABUROMI a/k/a MOHAMMED

ABUROMI,

Defendant-Appellant.

________________________________

February 16, 2012

Submitted January 9, 2012 - Decided

Before Judges Parrillo and Skillman.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Indictment Nos. 06-06-0760, 06-05-0657, 06-05-0871 and 05-06-0792.

Joseph E. Krakora, Public Defender, attorney for

appellant (Thomas Menchin, Designated Counsel,

on the brief).

Camlia M. Valdes, Passaic County Prosecutor, attorney

for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mike Aburomi appeals from a March 5, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in four Passaic County indictments with a number of offenses ranging in seriousness from first-degree carjacking, N.J.S.A. 2C:15-2a(1), to fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). An accusation also charged him with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). On September 24, 2007, in return for the State's agreement to recommend an aggregate six-year term subject to the eighty-five percent required time served pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to dismiss the remaining counts of the indictments, defendant pled guilty to second-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree theft, N.J.S.A. 2C:20-3; and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. He also pled guilty to violations of probation concerning indictments charging defendant with third-degree receiving stolen property. And on November 2, 2007, defendant pled guilty to the accusation charging him with third-degree CDS possession.

On January 8, 2008, defendant was sentenced on the second-degree burglary offense to a five-year term with eighty-five percent of that sentence to be served before parole eligibility. The remaining sentences were all made to be served concurrently, for an aggregate sentence of five years subject to the NERA parole disqualifier. No appeal was taken, nor did defendant ever file a motion for a reduction of sentence.

On May 7, 2009, defendant filed the instant PCR petition, alleging ineffective assistance of counsel for failing to seek a lesser sentence due to conditions of his pre-guilty plea detention in the Passaic County jail, which he claimed violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to equal protection of the law. In support of this claim, defendant referenced three federal district court cases wherein conditions at the Passaic County jail were found to have warranted a downward departure from federal sentencing guidelines for the federal defendants housed therein. Defendant also alleged counsel was ineffective for failing to provide him with the form necessary to file a direct appeal of his sentence.

The PCR judge rejected both claims, finding the latter to be, at a minimum, "disingenuous," given representations defendant made during the plea colloquy and at sentencing as well as his extensive criminal history of twelve prior indictable convictions. As to the former, the judge noted that the federal prisoners were housed in a different section of the jail than defendant, and that, in any event, defendant failed to make a sufficient factual showing warranting a reduction in sentence. On this score, the PCR judge reasoned:

[Defendant] got the lowest sentence he could get in a second-degree crime. There's no way with his record this Court could have ever found in good conscience that I should go one degree lower and sentence him in a different range on a second-degree burglary charge. There's absolutely with this record no basis in conscience that I could have done that.

. . . .

Somewhere along the line, I guess, after he was sentenced[,] [defendant] comes to learn about a decision rendered by [a] Federal District Court Judge . . . . It was a matter brought before the Federal Court involving federal detainees held at our Passaic County Jail in a specific section of the jail, not where this defendant was being housed. And the Federal Judge wrote an opinion. And the Judge found as to . . . certain sections of the jail, not where this defendant was housed, that there was serious overcrowding and as a result, the Judge in three separate cases granted a downward variance of a number of months for each defendant. The Federal Court was relying on federal law and federal statutes, a scheme

-- a sentencing scheme in the federal system much different than that which is set forth in our Criminal Code as interpreted by our Supreme Court in a number -- in a number of decisions.

. . . .

But there's nothing in our scheme of sentencing -- aggravating and mitigating factors . . . -- that says judge, you can ignore a plea bargain, you can ignore the sentencing scheme, you could ignore the Criminal Code because you think conditions are such and you ought to reduce the sentence further. There's no such authority in my view that exists.

On appeal, defendant argues ineffective assistance of PCR counsel for failing to demonstrate, both factually and legally, that conditions at the Passaic County jail during defendant's pre-sentence detention warrant a reduction in his sentence. We reject this claim as both procedurally barred and substantively without merit.

Rule 3:22-4 states in pertinent part that:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule . . . .

Exceptions exist where the ground for relief could not reasonably have been raised in prior proceedings, Rule 3:22-4(a); where enforcement of the bar would result in a fundamental injustice, Rule 3:22-4(b); or where the defendant's constitutional rights were seriously infringed during the conviction proceedings, Rule 3:22-4(c).

Here, defendant neither filed a direct appeal nor moved for a sentence reduction. Moreover, he has failed to explain why the allegation argued for the first time in his PCR petition could not have been previously raised, since the federal cases upon which he exclusively relies were decided well before his sentencing. Defendant has also failed to demonstrate why enforcement of the procedural bar would result in fundamental injustice or in what manner his constitutional rights have been seriously infringed.

There is yet another reason why defendant's argument on this instant appeal is not properly cognizable. The present claim that PCR counsel was ineffective was never raised before the PCR court, which only considered defendant's sole claim that he received ineffective assistance from his trial counsel. As such, the issue of PCR counsel's effective representation has not properly been presented to the Law Division, where it should have been resolved in the first instance, see State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994), upon appropriate factual findings necessary for a proper determination of the issue. State v. Preciose, 129 N.J. 451, 464 (1992).

That said, we find the claim of ineffective assistance of PCR counsel lacking in substantive merit. R. 2:11-3(e)(2). Significantly, defendant does not claim that his PCR counsel failed to assert an argument that he requested, State v. Rue, 175 N.J. 1, 19 (2002), but only that PCR counsel should have produced witnesses to testify about Passaic County jail conditions during defendant's pre-sentence detention. Yet, defendant has not provided any proof by way of certification or affidavit to show what testimony these witnesses would have provided as to his particular confinement. Instead, defendant simply relies on two unreported federal decisions, which, as noted, were decided in the context of federal, not state, sentencing guidelines; dealt with federal inmates housed in a completely separate section of the Passaic County Jail; and were based on federal statutes not state laws. Moreover, the testimony of the witnesses in the federal cases cited by defendant was evident in the opinions rendered therein, which the PCR court fully considered in rejecting defendant's claims. And, not only has defendant failed to indicate what their testimony would have been relative to the conditions under which he was detained, he has offered nothing personally to detail and describe those conditions. Simply put, defendant has not demonstrated PCR counsel was ineffective by even suggesting what information could have been produced or how such proof would have changed the outcome of his PCR petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).