STATE OF NEW JERSEY v. ARSHAN LITTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0403-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARSHAN LITTLE,

Defendant-Appellant.

January 22, 2013

Submitted October 23, 2012 - Decided

Before Judges Alvarez and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-0974.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Arshan Little appeals the April 4, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm for the reasons stated by Judge Kevin G. Callahan in his cogent, thorough, and comprehensive written opinion. We make only the following brief comments.

By way of background, defendant entered a guilty plea on November 15, 2006, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), amended from murder, and first-degree armed robbery with a handgun, N.J.S.A. 2C:15-1. On April 18, 2007, pursuant to the plea agreement, defendant was sentenced to thirty years on the aggravated manslaughter, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), concurrent to twenty years subject to NERA on the armed robbery. Both sentences were imposed concurrent to an unrelated indictment. The remaining fourteen counts of the indictment were then dismissed.

Defendant appealed his sentence, heard on the excessive sentence calendar pursuant to Rule 2:9-11, and we affirmed on February 4, 2009. The Supreme Court denied the petition for certification which followed. State v. Little, 200 N.J. 371 (2009). Defendant subsequently filed this petition for PCR on July 30, 2010; he was assigned counsel and a supplemental brief was filed on his behalf. Judge Callahan issued the decision from which this appeal is taken after hearing oral argument on February 17, 2011.

When defendant in 2006 placed the negotiated terms of the plea agreement on the record, he stated under oath that he and his codefendants walked into a convenience store during the early morning hours of March 14, 2005, with the intent to commit an armed robbery. Defendant was armed with a .38 handgun. He said that after they entered, "[t]here was a little confrontation and the other store owner came in with a bat and shocked us like and I killed the man."

Defendant was nineteen when the offense was committed, and had a juvenile record dating back approximately five years, consisting of at least four juvenile adjudications for which he was sentenced to probation and custodial terms, including a commitment to the New Jersey Training School for Boys in Jamesburg for robbery. In fact, defendant had been released from Jamesburg approximately one year prior to the commission of these crimes. Based on his history and the other relevant information developed during the sentencing proceeding, the judge found defendant was at risk of committing other offenses in the future, had previously been involved in serious offenses, and that a specific need to deter this defendant existed in the case, i.e., aggravating factors three, N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9). He also concluded that, although not a statutory mitigating factor per se, he would include in his analysis defendant's expression of remorse. Defendant's sentence was also subject to the mandatory provisions of the Graves Act, N.J.S.A. 2C:43-6(c).

On appeal, defendant raises the following point for our consideration:

POINT ONE

THE COURT MISAPPLIED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO THE DEFENDANT IN ORDER TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

To reiterate, we affirm essentially for the reasons set forth in Judge Callahan's opinion.

Defendant's contentions regarding trial counsel's alleged failure to raise "numerous mitigating factors" and his "history of drug and alcohol abuse" are not supported by the record. At sentencing, counsel did remind the court of defendant's young age at the time of the offense. He also explained that defendant's imprisonment would result in a loss to his family, that his marijuana and alcohol abuse commenced at age twelve, and that he dropped out of school in the ninth grade. Counsel did in fact present the information in mitigation of sentence which defendant now claims was omitted. Counsel also pointed out that even when defendant first confessed to the authorities regarding the crime, he expressed remorse.

Defendant's acknowledged history of drug and alcohol abuse is not in and of itself a mitigating factor. And contrary to defendant's argument, his confession is not a basis for mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12). See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008) (the record supports a finding of mitigating factor twelve only when a defendant's "cooperation" assists law enforcement in the prosecution of other perpetrators or the resolution of other offenses).

Additionally, defendant asserts that counsel was ineffective by virtue of failing to insist that he be sentenced as a youthful offender to the Youth Correctional Institution Complex pursuant to N.J.S.A. 2C:43-5. That statute specifically states that persons subject to the mandatory provisions of the Graves Act under N.J.S.A. 2C:43-6(c) are excluded from its purview. In other words, indeterminate sentences are not available when a defendant must serve a Graves Act mandatory minimum term. Further, defendant does not explain the benefit he would have gained had the judge designated the institution at which he was to serve his term. Therefore this argument too lacks merit.