STATE OF NEW JERSEY v. DWAYNE JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1011-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE JONES,

Defendant-Appellant.

________________________________

December 17, 2012

Submitted January 30, 2012 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-04-0451 and 05-10-1488.

Joseph E. Krakora, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Robert J. Cassidy, Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant, Dwayne Jones, appeals the trial court's April 7, 2010 order denying his petition for post-conviction relief ("PCR"). We affirm.

The PCR petition stems from defendant's conviction of two first-degree robberies, N.J.S.A. 2C:15-1, charged in separate indictments. The first robbery took place in November 2004 and the second took place in July 2005.

With respect to the first robbery, the record indicates that on November 20, 2004, defendant was driving around Lakewood Township with three companions when they approached several other persons. Defendant, who admittedly was in possession of a handgun, got out of the vehicle. He struck one of the victims in the head with his hand, and then defendant and his companions directed them to empty their pockets. Defendant was subsequently arrested and charged with robbery.

About eight months later on July 19, 2005,1 defendant was with two other male companions by the Little League fields in Lakewood Township. While defendant and one of the men hid in the bushes acting as lookouts, the third man, who was armed with a handgun, robbed several individuals.

In March 2006, defendant entered into a plea agreement with the State. Pursuant to that agreement, defendant pled guilty to both robberies. In exchange, the State agreed to dismiss the other counts of the indictments and also to recommend to the court concurrent sentences of twelve years, subject to an eighty-five percent parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

On April 28, 2006, defendant was sentenced in accordance with the plea agreement. The sentencing judge found applicable aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the risk of reoffending), and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence); along with mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) (conduct of a youthful offender substantially influenced by a more mature person). As recommended by the State, the judge imposed a concurrent twelve-year term of incarceration, subject to the NERA parole disqualifier, on both robberies. During the course of his oral comments, the sentencing judge observed that defendant had strayed from a promising future as a college football player and instead had turned to crime and the lure of gang membership.

Defendant appealed his sentence, which was heard on the Excessive Sentence Oral Argument ("ESOA") calendar on January 10, 2007. Defendant's appellate counsel argued that there was an inadequate factual basis to show the use of a gun in the first robbery and that defendant had raised an affirmative defense which negated the factual basis to support conviction of the second robbery. We rejected those arguments and sustained the sentence.

In April 2009, defendant filed a PCR petition, which was amplified in a brief by his PCR counsel. Defendant alleges that his plea attorney and his appellate attorney both had deprived him of the effective assistance of counsel. In particular, defendant contends that his attorneys should have taken issue with the sentencing judge's allusion to gang membership because the record lacked proof linking defendant's conduct to any gang activity.

Defendant further argues that his prior counsel should have contested the judge's assessment of aggravating and mitigating factors. More specifically, defendant maintains that his trial counsel should have urged the judge to address whether other mitigating factors applied, including: one, N.J.S.A. 2C:44-1(b)(1) (conduct neither causing nor threatening serious harm); two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); three, N.J.S.A. 2C:44-1(b)(3) (acting under strong provocation); four, N.J.S.A. 2C:44-1(b)(4) (grounds tending to excuse but not rising to a defense); five, N.J.S.A. 2C:44-1(b)(5) (victim induced the commission of the offense); six, N.J.S.A. 2C:44-1(b)(6) (defendant willing to compensate victim); seven, N.J.S.A. 2C:44-1(b)(7) (no prior history); eight, N.J.S.A. 2C:4-1(b)(8) (conduct was the result of circumstances unlikely to reoccur); nine, N.J.S.A. 2C:44-1(b)(9) (attitude of defendant indicates he is unlikely to commit another offense); ten, N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond to treatment); eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail excessive hardship); and twelve, N.J.S.A. 2C:44-1(b)(12) (defendant willing to cooperate with law enforcement authorities). Defendant submits that had these factors been accepted by the trial court, he would not have been sentenced above the ten-year minimum sentence for first-degree robbery pursuant to N.J.S.A. 2C:43-6(a). He also faults his appellate counsel for not pressing these mitigating factors at the ESOA proceeding.2

The PCR judge,3 Hon. James Den Uyl, J.S.C., rejected defendant's arguments in an oral opinion on April 7, 2010. Judge Den Uyl concluded that the sentencing judge's reference to gang influences did not prejudice defendant, because the judge did not find aggravating factor five, N.J.S.A. 2C:44-1(a)(5) (substantial likelihood of involvement in organized criminal activity). In fact, the sentencing judge treated the perceived linkage to gang members, whether real or imagined, in defendant's favor, by finding that mitigating factor thirteen (the influence of others upon a young offender) applied.

In addition, Judge Den Uyl found no "reasonable probability" that the sentencing judge would have found any additional mitigating factors, had they been urged by plea counsel. Even assuming, for the sake of argument, that such mitigating factors applied, Judge Den Uyl concluded that they were not likely to have altered the sentence that was imposed. He also noted that it was "highly unlikely" that the judge would have imposed a ten-year minimum sentence for each of these robberies and still made them concurrent.

On appeal, defendant raises the following points:

POINT I

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BECAUSE APPELLATE COUNSEL FAILED TO FILE AN APPEAL OF THE TRIAL COURT'S REFERENCE TO GANG MEMBERSHIP WHEN THERE WAS NO EVIDENCE OF THE SAME IN THE RECORD

POINT II

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BECAUSE APPELLATE COUNSEL FAILED TO FILE AN APPEAL OF THE TRIAL COURT'S FINDING THAT A PROPER AGGRAVATING/MITIGATING FACTOR ANALYSIS HAS BEEN CONDUCTED BY THE SENTENCING COURT

POINT III

THE COURT ERRED IN FAILING TO SENTENCE DEFENDANT PURSUANT TO N.J.S.A. 2C:43-5

To establish a deprivation of the constitutional right to the effective assistance of counsel, a convicted defendant must satisfy the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), by demonstrating that: (1) his prior counsel's performance was deficient, and (2) the deficient performance actually prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The United States Supreme Court has extended these principles to the services provided by a criminal defense attorney in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012); see also Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant alleging a Sixth Amendment deprivation must prove with "reasonable probability" that the result in his case would have been different had he received proper representation from his plea counsel. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Applying those principles here, we affirm the rejection of defendant's PCR petition, substantially for the sound reasons set forth in Judge Den Uyl's oral opinion. The sentencing judge's allusions to defendant's gang aspirations, whether or not they were actually true, were not used as an aggravating factor. Moreover, we must accord substantial deference to the trial judge's weighing of aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 612 (2010); see also State v. Roth, 95 N.J. 334, 365 (1984). We hasten to point out that the concurrent twelve-year sentence was near the lower end of the first-degree range under N.J.S.A. 2C:43-6(a), and that defendant faced an even greater exposure had the other charges in the indictment not been dismissed or if the two robberies had been treated consecutively. An evidentiary hearing on defendant's PCR application was unnecessary because he made no prima facie showing to meet the Strickland/Fritz standards. See State v. Preciose, 129 N.J. 451, 462 (1992).

Lastly, defendant argues for the first time on this PCR appeal that he should have been sentenced to an indeterminate term at a youth correctional facility, pursuant to N.J.S.A. 2C:43-5. This argument readily fails because, as a matter of established law, defendants who are convicted of offenses subject to the parole ineligibility terms of the NERA are categorically ineligible to be sentenced as youthful offenders under N.J.S.A. 2C:43-5. State v. Corriero, 357 N.J. Super. 214, 217-18 (App. Div. 2003).

Affirmed.

1 At this point the defendant was out on bail, pending the charges from the first arrest.

2 Some of these factors were not specifically mentioned in defendant's PCR submissions to the trial court but are advocated now on appeal.

3 The sentencing judge has retired.