STATE OF NEW JERSEY v. DERRICK LENNON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3508-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK LENNON,

Defendant-Appellant.

__________________________________

February 28, 2012

Submitted February 14, 2012 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1081.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas F. Menchin, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an August 27, 2009 order denying his petition for post-conviction relief (PCR). He contends that he received ineffective assistance from his trial and appellate counsel because neither argued, or sufficiently argued, the disparity in sentencing exposure between defendant and his co-defendant, his fiancée at the time of the offense. We affirm.

In 2002, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in which the State agreed to recommend a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State's proofs demonstrated that defendant and his fiancée robbed a victim in the parking lot of a convenience store. At his plea hearing, defendant testified that he watched his fiancée "drag[] the victim across the parking lot" toward a stolen car in which he was seated. As the victim attempted to prevent the fiancée from taking her pocketbook and getting into the car, defendant brandished a hammer and threateningly told the victim to "[l]et go of the car door." Defendant and the fiancée then drove away.

At the sentencing hearing, defendant moved to vacate his guilty plea. His trial counsel argued that the fifteen-year sentence recommended by the State was "inappropriate" because the fiancée "only received a seven[-]year [sentence subject to NERA], . . . and she was the one that actually committed the robbery." The judge denied defendant's motion and stated that the fiancée's "[criminal] record . . . was less extensive than . . . defendant's[,] and [that defendant] told me that he was the one that brandished a weapon." The judge followed the plea agreement and sentenced defendant to a fifteen-year prison term with eighty-five percent parole ineligibility, pursuant to NERA, concurrent to defendant's conviction in another county for carjacking.

Defendant appealed from his conviction and argued issues solely related to the sentence. Before our excessive sentencing panel, his appellate counsel contended:

In addition, it was mentioned at the sentencing that the [fiancée] apparently received a seven-year term, as opposed to the [fifteen]-year term, and by all accounts it appears that the [fiancée] played at least equal, perhaps more, of a role in the robbery than the defendant did. I know there is mention that the [fiancée] had less priors. I don't know to what extent. But I would say, even with less priors, that, you know, this defendant received more than double the sentence of the [fiancée], and she . . . actually was the one who physically robbed the victim.

We entered an order concluding that "[defendant's] sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." The Supreme Court denied defendant's ensuing petition for certification.1

Defendant then filed his petition for PCR.2 His counsel3 contended that defendant received ineffective assistance of counsel, emphasized the perceived sentence disparity, and stated:

[W]e're not asking for . . . give us ten . . . give us eight. But fifteen, we're asking for a twelve or thirteen . . . . [H]e committed . . . a horrific act . . . . He was part of the conspiracy to do something.

Without an evidentiary hearing, the PCR judge denied the petition and concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel.4 This appeal followed.

On appeal, defendant argues:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed, [counsel must] ensure that the trial is fair[; therefore], 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Generally, a PCR court need only conduct an evidentiary hearing when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This State's Supreme Court has noted that there is a "pragmatic dimension" to this inquiry:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

Further, to protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court stated in State v. Echols:

Because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," State v. McQuaid, 147 N.J. 464, 483, 688 A.2d 584 (1997), our rules provide various procedural bars. For example, a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars.

[ 199 N.J. 344, 357 (2009) (citing State v.Goodwin, 173 N.J. 583, 594 (2002)).]

After considering the record and briefs, we conclude that the arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion." Rule 2:11-3(e)(2). We add the following brief comments.

Uniform proportionate sentencing serves a major purpose in the administration of criminal justice. State v. Roach, 146 N.J. 208, 231-32, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Thus, sentencing judges must exercise broad discretion "to foster less arbitrary and more equal sentences." State v. Roth, 95 N.J. 334, 345 (1984). However, although "[d]isparity may invalidate an otherwise sound and lawful sentence," "'[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'" Roach, supra, 146 N.J. at 232 (alteration in original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)) (remanding to determine whether thirty-year sentencing disparity is justifiable). In determining whether a sentencing disparity exists, "[t]he trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233. We are also mindful of the great discretion we accord to judges in issuing sentences. State v. Bieniek, 200 N.J. 601, 612 (2000).

We are unconvinced that a failure of defendant's trial and appellate counsel "to argue sentencing disparity" constituted ineffective assistance.5 Defendant pled guilty to a first-degree offense, used a weapon, and had an extensive criminal record. In contrast, defendant's fiancée pled guilty to a second-degree offense and did not use a weapon or have an extensive criminal record.6 We highlight these differences to underscore why a failure to argue sentencing disparity in this case would not have constituted ineffective assistance. Thus, we conclude that defendant has not established the first prong under Strickland.

Moreover, we conclude that defendant has failed to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698, i.e., that defendant would have received a shorter sentence. The PCR judge stated that defendant "was extended term eligible based upon his prior convictions [and] could have gotten twenty years to life, but he didn't." Thus, defendant failed to meet the second prong of Strickland.7

1 State v. Lennon, No. A-3217-02 (App. Div. January 29, 2004), certif. denied, 182 N.J. 141 (2004).

2 The PCR judge rejected the State's contention that the PCR petition was time-barred pursuant to Rule 3:22-12 (five-year procedural bar on filing PCR petition). Defendant was sentenced on December 6, 2002, and filed a petition for PCR on October 30, 2008. However, the PCR judge stated that defendant had filed his petition originally "in the wrong place on March 27, 2006[, and t]here is no prejudice to the State." We do not reach whether Rule 3:22-12 bars the petition because we have determined that defendant failed to establish a prima facie case of ineffective assistance of counsel.

3 Defendant's PCR counsel was different from his trial and appellate counsel.

4 In denying the PCR petition, the judge relied in part on Rule 3:22-5 (bar of grounds expressly adjudicated). He determined that the sentencing disparity issue was previously decided on direct appeal. Because the State has not cross-appealed that aspect of the PCR judge's ruling and defendant cannot establish a prima facie case of ineffective assistance of counsel, we need not reach whether defendant's petition for PCR is barred pursuant to Rule 3:22-5.

5 We do not concede that there was a "fail[ure] to argue sentencing disparity." Both defendant's trial and appellate counsel indicated to the court that disparity existed between the sentences of defendant and his fiancée. However, trial counsel addressed the disparity to support defendant's request to set aside his plea. Appellate counsel contended that the disparity supported the argument that defendant's sentence was excessive and should be reduced. In both instances, the courts denied relief upon the alleged sentencing disparity because defendant and his fiancée were not similarly situated. Roach, supra, 146 N.J. at 233.

6 Although the parties did not provide to us the fiancée's judgment of conviction, the PCR judge stated that she pled guilty to second-degree robbery.

7 We disfavor the use of PCR proceedings as a substitute for direct appeal. State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988) (claim of excessive sentencing not cognizable in PCR proceeding), certif. denied, 115 N.J. 78 (1989); State v. Murray, 315 N.J. Super. 535 (App. Div. 1998) (errors at trial should have been raised on direct appeal), aff'd, modified on other grounds, and remanded, 162 N.J. 240 (2000). Rule 3:22-4 only accords post-conviction relief for grounds that "could not reasonably have been raised" in prior proceedings or that do not otherwise justify granting such remedy to avoid "fundamental injustice" or the serious impairment of constitutional rights.