STATE OF NEW JERSEY v. JERRY BAINES

NOT FOR PUBLICATION WITHOUT THE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.

JERRY BAINES,

Defendant-Appellant.

__________________________________

October 24, 2014

Submitted October 7, 2014 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-06-1816 and 08-09-2820.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the Law Division on June 25, 2013, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with various acts of delinquency, which allegedly were committed about one year before he reached the age of nineteen. The State filed a motion in the Family Part to waive jurisdiction to the Law Division so that defendant could be tried as an adult. The court granted the motion.

Defendant was thereafter charged under Indictment No. 08-06-1816 with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He also was charged under Indictment No. 08-09-2820 with four counts of second-degree robbery (counts one through four), N.J.S.A. 2C:15-1, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five).

On October 24, 2008, and November 3, 2008, defendant pleaded guilty to the one count under Indictment 08-06-1816, and counts one to four of Indictment No. 08-09-2820. The State agreed to recommend an aggregate sentence of eight years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismiss the endangering charge.

On January 9, 2009, the court sentenced defendant consistent with the plea agreement. Defendant was sentenced to four, concurrent eight-year terms of imprisonment for the robberies charged under Indictment 08-09-2820, subject to NERA, and a concurrent five-year term on count one of Indictment No. 08-06-1816, subject to a three-year period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6c.

Defendant appealed and raised the following argument

DEFENSE COUNSEL DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE REFERRAL HEARING BY HER FAILURE TO OBTAIN A PSYCHIATRIC EVALUATION. FURTHERMORE, THE WAIVER COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER A PSYCHIATRIC EVALUATION UNDER [RULE] 5:3-3.

We rejected defendant's argument and affirmed his conviction in an earlier unpublished opinion. The Supreme Court denied defendant's petition for certification.

On February 14, 2012, defendant filed a pro se petition for PCR, and on May 26, 2012, filed a supporting certification. Defendant alleged that he had been denied the effective assistance of counsel. The trial court assigned counsel, who filed a brief in support of defendant's petition.

On June 25, 2013, the PCR court heard oral argument in the matter. PCR counsel stated that defendant was not seeking to disturb his plea to the robbery charges. She stated that defendant's trial counsel erred by failing to argue that defendant should not have been sentenced to periods of parole ineligibility under NERA and the Graves Act. She said defendant "felt pressured" to plead guilty to all the charges. She asserted that defendant did not believe he should have pled guilty to the gun charge since "the gun wasn't his and he didn't know it was in the car."

Counsel also argued that defendant's trial attorney should have filed a motion to suppress the evidence obtained by the police, and that he failed to seek dismissal of the weapons charge. She maintained that defendant was "at least" entitled to an evidentiary hearing to "further explore these issues." If not, she argued, defendant should either be re-sentenced on the weapons charge or go to trial, or have a new plea on that charge.

The PCR court placed its decision on the record, finding that defendant failed to present a prima facie case of ineffective assistance of counsel and a hearing was not required. The court entered an order dated June 25, 2013, denying the petition. This appeal followed.

Defendant raises the following arguments for our consideration

POINT I

THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We are convinced from our review of the record that these arguments are entirely without merit.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To do so, the defendant must show that his attorney's handling of the case "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A defendant also must establish that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet this part of the test, "[a] defendant must show that 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.

Here, defendant argues that he established a prima facie case of ineffective assistance of counsel because, at sentencing, his attorney failed to advocate for findings on certain mitigating factors, specifically mitigating factors one, two and four. N.J.S.A. 2C:44-1b(1) (defendant's conduct did not cause or threaten serious harm); -1b(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"); and -1b(4) (substantial grounds to excuse or justify defendant's conduct, although they do not establish a defense). Defendant further argues that his attorney failed to argue that he should be sentenced within the third-degree range, and that he should not have been subject to NERA and Graves Act periods of parole ineligibility.

We note that, although framed as a denial of the effective assistance of counsel, defendant is essentially arguing that his sentence is excessive. Such claims are not cognizable on PCR. State v. Acevedo, 205 N.J. 40, 46-47 (2011) (citing State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)). Moreover, the PCR process is not a substitute for direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992) (citing State v. Cerbo, 78 N.J. 595, 605 (1979)). Arguments, like defendant's sentencing arguments, could reasonably have been raised in his direct appeal and, therefore, they are barred by Rule 3:22-4(a).

In any event, defendant's sentencing arguments are entirely without merit. Defendant contends that mitigating factors one and two should have been found because he did not point a gun at any of the victims of the robberies, and because none of the victims were injured. We note, however, that when he entered his plea on November 3, 2008, defendant admitted that he pushed one victim, knocked her to the ground, and took her cell phone and pocketbook. He acknowledged that he struck another victim with his fist, and took her money, cell phone and iPod.

Defendant also admitted that he struck a third victim, while he took her pocketbook, and that he hit the fourth victim with his fist when he took her money. In light of defendant's admissions, findings of mitigating factors one and two were not warranted.

Defendant also contends that the sentencing court should have found mitigating factor four because he is bipolar. Defendant maintains that, while his condition did not allow for a mental-state defense, trial counsel should have argued that it justified a finding of the mitigating factor. We do not agree.

The record shows that, at sentencing, defense counsel asked the court to consider defendant's "psychological, emotional problems." Counsel was not required to press the point further, particularly since there is nothing in the record to show that defendant's condition caused him to engage in four different robberies of four different victims.

In addition, defendant has not shown that the sentence would have been different even if his trial attorney had sought to have him sentenced as third-degree offender, or argued that he should not be subject to parole ineligibility periods as prescribed by either NERA or the Graves Act. The robberies to which defendant pled guilty were clearly offenses subject to NERA. Moreover, the parole ineligibility period imposed on the weapons offense was required by the Graves Act.1

Defendant also claims he was pressured to plead guilty to the weapons charge. In the context of a plea agreement, a defendant must establish "that counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and . . . that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Here, the PCR court found that the record did not indicate that defendant was unduly pressured to plead guilty. The PCR court noted that, when he entered his plea, defendant stated that he had been satisfied with counsel's services. Furthermore, when he entered his plea to the weapons charge on October 24, 2008, defendant said that he was driving his car on February 28, 2008, and at that time, possessed a .380 caliber handgun. He admitted that it was his gun, and that he knew the gun was in the car, under his seat.

The PCR court stated that defendant's claim, some four years after he pled guilty, that the gun was not his "does not ring true." Moreover, the PCR court stated that defendant's claim that his attorney forced him to plead guilty to the gun charge failed because it was based on nothing but his bald assertion. We agree.

We note that defendant's claim is directly contradicted by his statement at the November 3, 2008 hearing, where he pled guilty to the four robberies as part of the global plea agreement. Defendant was asked whether anyone forced him to plead guilty, and he replied "No." He was asked whether he was pleading guilty voluntarily. He said, "Yes."

Thus, the record supports the PCR court's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel, and the existing record provided an adequate basis for resolution of defendant's claim. R. 3:22-10(b). Therefore, an evidentiary hearing was not required. See State v. Jones, N.J. ___, ___ (2014) (slip op. at 16) (noting that evidentiary hearing on PCR petition is only required when the alleged facts, "when viewed in the light most favorable to [defendant], are sufficient to demonstrate reasonable likelihood of success on [the] PCR claim"); cf. State v. Preciose, 129 N.J. 451, 460 (1992).

Affirmed.

1 At the time of defendant's sentencing, the Graves Act mandated imposition of a minimum three-year period of parole ineligibility for a violation of N.J.S.A. 2C:39-5b. The Act has since been amended to require forty-two months of parole ineligibility for such an offense. L. 2013, c. 113, 2; see also N.J.S.A. 2C:43-6c.