STATE OF NEW JERSEY v. ROBERT J. WIKANDER

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT J. WIKANDER,

Defendant-Appellant.

________________________________________________________________

October 21, 2013

Submitted October 8, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-12-1607.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the November 28, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed by Judge Hoffman in his thorough oral opinion of November 14, 2011.

While intoxicated, defendant crashed into two young girls on the sidewalk, leaving both permanently disfigured. Pursuant to a plea agreement, defendant pleaded guilty to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). He was sentenced to the maximum term permissible under the agreement, two consecutive terms of seven years, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We remanded twice for resentencing, the first time to consider the real-time consequences of consecutive NERA terms and the second time to provide a detailed statement of reasons for the reimposition of consecutive sentences. The first remand was handled by the original sentencing judge and the second by another judge. In a seventeen-page opinion, we affirmed the original sentence after it was reimposed for the second time. State v. Wikander, Docket No. A-3275-08, (App. Div. Oct. 4, 2010).

On appeal defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM EACH OF HIS ATTORNEYS WHO REPRESENTED HIM AT HIS ORIGINAL SENTENCING AND AT BOTH RE-SENTENCINGS.

POINT II: THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987).

In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Defendant is entitled to effective counsel at sentencing and entitled to argue in a PCR petition that he received ineffective representation at the sentencing hearing. See State v. Hess, 207 N.J. 123, 152-53 (2011) (explaining that a plea agreement preventing defense counsel from arguing mitigating factors at sentencing is impermissible and may be challenged on PCR). Defendant's right to raise the issue of ineffective sentencing counsel on PCR is separate and apart from his right to a direct appeal arguing the excessive nature of the sentence imposed.

Defendant argues in this appeal that all three sentencing counsel were ineffective only in that they "never addressed the fact that consideration of the magnitude of the consequences to the victim was not a relevant factor to be utilized when determining whether consecutive or concurrent terms were appropriate." Counsels' deficiency, defendant claims, resulted in the sentences running consecutively rather than concurrently. The first remand to reconsider the consecutive nature of the sentences was rendered a nullity by our second remand for the same purpose. Thus, any failure on the part of the second sentencing counsel had no effect on defendant's ultimate sentence.1 We discussed at great length the propriety of the reasons expressed by the second remand judge for imposing consecutive sentences, concluding that in light of recent developments in sentencing law, those reasons were not improper and did not constitute an abuse of discretion. Wikander, supra, slip op. at 10-17. We agree with Judge Hoffman that counsel at defendant's first and third sentencing hearings argued vigorously on his behalf, and affirm substantially for the reasons articulated by Judge Hoffman.

1 We do not intend to imply any deficiency on the part of defense counsel on the first remand.