STATE OF NEW JERSEY v. AMOS BURCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMOS BURCH,

Defendant-Appellant.

________________________________

November 20, 2013

 

Submitted: November 14, 2013 Decided:

 

Before Judges Simonelli and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-01-0024.

 

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

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Amos Burch appeals from the June 29, 2011 Law Division Order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On January 7, 2005, defendant pled guilty to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in exchange for the State's agreement to dismiss all other pending charges against him and to recommend a sentence of thirteen years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In accordance with this plea agreement, the trial judge sentenced defendant to a thirteen-year term, subject to NERA, with a five-year period of parole supervision upon release.

Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed. Defendant then filed a PCR petition, contending that trial counsel rendered ineffective assistance by: (1) failing to argue at sentencing for certain mitigating factors, and against the aggravating factors found by the judge; (2) neglecting to argue that defendant should be sentenced as if he had pled to a second-degree offense; and (3) failing to seek a reduced sentence based upon promises allegedly made to defendant by detectives at the time he confessed to the crime.

In a June 20, 2011 oral opinion, Judge Darrell M. Fineman denied the petition, concluding that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. The judge found that defendant was again arguing, as he did on direct appeal, that his sentence was excessive. Because we previously rejected defendant's excessive sentence arguments on direct appeal, and defendant could have raised his contentions at that time, the judge found that defendant's claims were barred by Rule 3:22-4.1

Judge Fineman nevertheless considered defendant's contentions and found them to be without merit. He found that trial counsel effectively negotiated a favorable plea agreement for defendant, which was four years less than the State had originally offered and at "the low end" of the sentencing range. After examining the record, the judge also found, contrary to defendant's contention, that trial counsel had argued for mitigating factor four, N.J.S.A. 2C:44-1b(4), by raising defendant's "history of schizophrenia" at the sentencing hearing. While counsel raised no other mitigating factors, the sentencing judge nevertheless found that mitigating factors six, N.J.S.A. 2C:44-1b(6), and ten, N.J.S.A. 2C:44-1b(10), applied.

Judge Fineman rejected defendant's argument that his attorney should have argued for mitigating factors seven, eight and twelve. N.J.S.A. 2C:44-1b(7), (8), and (12). Defendant had a number of prior convictions and was on probation at the time he committed the offense for which he was sentenced. Defendant fled to North Carolina after the offense and "only cooperated with law enforcement after police brought him [back] to New Jersey." Thus, these mitigating factors were not applicable and Judge Fineman found that defendant's attorney was not ineffective for failing to raise them. Similarly, based on defendant's extensive prior record, Judge Fineman found that there was no basis for defendant's attorney to argue against aggravating factors three, six, and nine. N.J.S.A. 2C:44-1a(3), (6), and (9).

Because the aggravating factors clearly outweighed the mitigating factors, Judge Fineman concluded there was no basis to support an argument by trial counsel that defendant should have been sentenced, pursuant to N.J.S.A. 2C:44-1f(2), to a term appropriate for a crime one degree lower than that for which he was convicted. Finally, the judge noted that, in his taped confession, defendant stated that he had not been "threatened or promised anything in return for [his] statement." Therefore, there was nothing other than defendant's bald assertion to support his claim that the detectives promised he would receive a ten-year sentence if he confessed. This appeal followed.

On appeal, defendant raises the following contention:

POINT I

 

BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

 

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland. Id. at 463. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fineman in his well-reasoned June 20, 2011 oral opinion.

Affirmed.

1 In pertinent part, Rule 3:22-4(a) provides that, subject to exceptions not applicable here, "[a]ny ground for relief not raised . . . in any appeal taken [from a conviction] is barred from assertion in" a first petition for PCR.