STATE OF NEW JERSEY v. ASTON SAPPE

NOT FOR PUBLICATION WITHOUT THE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.

ASTON SAPPE,

Defendant-Appellant.

September 11, 2013

Before Judges Espinosa and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0058.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant Aston Sappe appeals from the August 18, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On June 9, 2009, a Hudson County grand jury returned three indictments against defendant, two of which included charges against co-defendants. The first indictment, an eleven-count indictment, charged defendant with: distribution of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count one); distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); two counts of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (counts five and seven); two counts of possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts six and eight); possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count nine); possession of a firearm with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count ten); and possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1a (count eleven).1

The second indictment charged defendant with one count of tampering with evidence, N.J.S.A. 2C:28-5a.

The third indictment, a fifteen-count indictment, charged defendant with: possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count six); possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count seven); possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count eight); receiving a stolen motor vehicle, N.J.S.A. 2C:20-7 (count nine); unlawful possession of an automobile with altered identification, N.J.S.A. 2C:17-6n (count ten); possession of a false motor vehicle registration, N.J.S.A. 2C:21-2.1d (count eleven); obstruction of the administration of law, N.J.S.A. 2C:29-1a (count twelve); preventing the effectuation of a lawful arrest by flight, N.J.S.A. 2C:29-2a (count thirteen); and endangering the welfare of a child, N.J.S.A. 2C:24-4a (count fourteen).2

On October 8, 2009, pursuant to a negotiated plea agreement, defendant pled guilty to counts seven and eleven of the first indictment, the sole count of the second indictment, and counts seven and eleven of the third indictment. In exchange, the State agreed to dismiss the remaining charges against defendant and to recommend a ten-year prison sentence. In providing a factual basis for his plea, defendant testified, among other things, that Hudson County Prosecutor's Office investigators searched his home with his consent, where they found cocaine and a firearm. Additionally, defendant testified that no one had pressured him into pleading guilty. Judge Kevin Callahan accepted defendant's plea.

On December 4, 2009, in accordance with the plea agreement, Judge Callahan sentenced defendant to ten years imprisonment with a three year period of parole ineligibility and imposed appropriate fines and penalties. Defendant did not file a direct appeal of his conviction and sentence.

Thereafter, defendant filed a pro se petition for PCR, alleging ineffective assistance of counsel. After PCR counsel was assigned to defendant, he filed a supplemental certification, alleging that trial counsel refused to speak with him about a motion to suppress, despite defendant informing trial counsel that his home was searched without his consent. Additionally, defendant claimed that he had filed a pro se motion to suppress, but his trial counsel refused to argue it and pressured him into accepting the plea offer.

On July 29, 2011, Judge Callahan issued a written opinion finding that defendant had not established a prima facie case of ineffective assistance of counsel and denying the PCR petition. This appeal followed.

On appeal defendant raises the following arguments for our consideration:

POINT I

THE COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING ON WHETHER [DEFENDANT] HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PROSECUTE A MERITORIOUS MOTION TO SUPPRESS AND BY NEGLECTING TO ARGUE MITIGATING FACTORS TO SUPPORT A LOWER SENTENCE.

A. The Trial Attorney's Failure to Pursue a Motion to Suppress Evidence Constituted Ineffective Assistance of Trial Counsel.

B. The Trial Attorney's Failure to Seek a Lower Sentence Constituted Ineffective Assistance of Counsel.

After considering defendant's arguments in light of the applicable law, we find them without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Callahan's cogent written opinion. We add the following comments.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

The determination on whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013).

We first address defendant's argument that his trial counsel was ineffective by failing to file a motion to suppress. In support of his argument, defendant alleges he did not sign the consent to search form and the investigators coerced his mother into consenting to the search by threatening to arrest her. We find no merit in defendant's argument.

"In an ineffective assistance claim based on failure to file a suppression motion, the prejudice prong requires a showing that the motion would have been successful." State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003). Here, there is no competent evidence to suggest a motion to suppress the cocaine and the firearm discovered by the investigators would have been successful. On the contrary, the record shows that both defendant and his mother freely and voluntarily consented to the search of the home. Judge Callahan noted "the record clearly states that defense counsel went through possible, defenses, discovery, and any possible motions." Moreover, defendant testified during the plea hearing that the search was made with his consent:

[TRIAL COUNSEL]: . . . [W]ere you in Jersey City on October 1, 2008?

[DEFENDANT]: Yes.

[TRIAL COUNSEL]: And you gave consent to search [your] house [on] . . . Oak Street?

[DEFENDANT:] Yes.

Accordingly, there is no evidence to show a motion to suppress would have been successful. Thus, Judge Callahan properly determined defendant failed to establish a prima facie case that trial counsel was ineffective for not filing such motion.

We now turn to defendant's argument that his trial counsel was ineffective due to his failure to argue for a lesser sentence. Specifically, defendant contends trial counsel should have argued for the court to apply mitigating factors favorable to him and should have argued for the court to sentence him one degree lower than the crimes for which he was convicted. Again, we disagree.

At sentencing, Judge Callahan applied aggravating factors three, risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3), six, extent of prior criminal record, N.J.S.A. 2C:44-1a(6), and nine, need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1. Additionally, Judge Callahan found that defendant was remorseful and applied that as a mitigating factor. Next, Judge Callahan found that "[t]he aggravating factors completely and substantially outweigh the mitigating factors." He then sentenced defendant, in accordance with the plea agreement, to ten years imprisonment with a three year period of parole ineligibility and imposed appropriate fines and penalties.3

The record contains no evidence to show Judge Callahan should have applied any other mitigating factors or should have sentenced defendant to a lesser sentence. Thus, defendant's argument that his trial counsel was ineffective at sentencing lacks merit. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel."). As Judge Callahan aptly noted in his written opinion denying defendant's petition for PCR, "[b]ased on the aforementioned aggravating factors found by the Court and supported by the record, [defendant] could have received a substantially higher sentence than [that] imposed by this Court."

In summary, we are satisfied that defendant failed to set forth a prima facie claim of ineffective assistance of counsel. There is no evidence to suggest that defendant did not sign the consent form or that investigators coerced him to sign it, and there are no mitigating factors present that could outweigh the aggravating factors. Defendant s counsel secured a favorable plea agreement, and there is no evidence that counsel provided ineffective assistance. Therefore, we find no basis to disturb Judge Callahan's decision to deny defendants petition for PCR.

Affirmed.

1 Counts three and four solely pertained to a co-defendant.

2 Counts one through four and count fifteen pertained solely to various co-defendants.

3 The total term of imprisonment was based on concurrent sentences for the five offenses defendant pled guilty to committing.