STATE OF NEW JERSEY v. JIMMY GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1092-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY GARCIA,

Defendant-Appellant.

________________________________________________________________

December 27, 2012

Submitted December 3, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1934.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jimmy Garcia appeals from the October 21, 2010 Law Division order denying his petition for post-conviction relief (PCR). We conclude the trial judge correctly determined the following: (1) defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel; (2) defendant's proffered mitigating factors were without merit; and (3) there was no evidence to support sentencing defendant one degree lower than the offense to which he pled guilty.

On November 14, 2006, a Hudson County Grand Jury returned an indictment against defendant charging him with fourth degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count one); second degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five); and first degree armed robbery, N.J.S.A. 2C:15-1 (count six). Defendant entered into a plea agreement for first degree armed robbery (count six) in exchange for dismissal of all remaining counts of the indictment and a recommended sentence of ten years imprisonment with an 85% period of parole ineligibility.

On December 12, 2007, defendant appeared for sentencing but indicated that he wished to retract his previously entered guilty plea. A two-day motion hearing was later held, at which time plea counsel and defendant testified. Defendant admitted his guilt but asserted that counsel pressured him into entering a plea. Plea counsel testified that he fully explained to defendant the maximum sentence exposure given the multiple charges and the strong evidence against him. The motion judge found that defendant had not previously asserted innocence, his plea was freely and voluntarily given, and defendant provided a factual basis for the plea. The judge did not accept defendant s contentions that he was pressured into entering the plea by his counsel and found that "no coercion was used in any way, shape or form." Defendant's motion was denied, then the judge sentenced defendant on first degree robbery in accordance with the plea agreement.

Defendant filed an appeal, and the matter was considered by our excessive sentencing panel. We determined that the sentence was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. Garcia, No. A-3585-07 (App. Div. Sept. 22, 2009).

Defendant filed a timely PCR petition claiming ineffective assistance of counsel at the time of the plea, at sentencing, and on direct appeal. Oral argument was held before Judge Joseph V. Isabella on October 21, 2010. In a written opinion dated November 3, 2010, the judge denied the petition.

First, the judge found that the ineffective assistance of plea counsel claim was conclusively decided by the denial of the motion to withdraw the guilty plea and, therefore, barred pursuant to R. 3:22-5. Next, the PCR judge concluded that defendant's contentions that (1) trial counsel failed to raise additional mitigating circumstances1 at sentencing, and (2) appellate counsel failed to raise these issues on appeal, were insufficient to satisfy the first Strickland prong. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1974) (stating that "defendant must show that counsel's performance was deficient"); see also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland standard in New Jersey). In each instance, he noted that even if counsel had asserted these additional claims, the evidence did not support a reasonable probability that the outcome would have changed. Strickland, supra, 466 U.S. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 (noting that in a criminal matter, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). Lastly, the PCR judge found that the issues raised in defendant's pro se brief were not appropriate for post-conviction relief.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. The Prevailing Legal Principles Regarding the Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.

B. Trial Counsel failed to Adequately Represent the Defendant's Interest at Sentencing by Failing to Demonstrate the Applicability of Various Mitigating Factors, by Failing to Address the Inapplicability of the Aggravating Factors Found by the Trial Court to Exist, and by Failing to Present a Cogent Argument Requesting the Trial Court Impose a Sentence Commensurate With a Second Degree Defense.

We have considered the record and affirm for the reasons set

forth in Judge Isabella s well-reasoned written opinion. We add only the following.

Defendant's claim of counsel ineffectiveness for failing to present additional mitigating factors and failing to adequately argue for a sentencing downgrade amount to no more than an excessive sentencing argument cloaked in "ineffective assistance of counsel" language. Such excessive sentencing claims, however, are not cognizable on PCR review. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-2 (2012); State v. Acevedo, 205 N.J. 40, 45-46 (2011). They are also procedurally barred in this matter under Rule 3:22-5 as either previously raised and decided, or capable of having been so raised pursuant to Rule 3:22-4. In any event, even if properly cognizable here, we are persuaded that the alleged deficiencies clearly fail to meet the Strickland test. The claims now being made would not have resulted in a different, more favorable outcome for defendant, and none required an evidentiary hearing.

1 Defendant claimed that that he was forcibly coerced by his co-defendants to commit the crime, and he suffered from drug dependency problems.