STATE OF NEW JERSEY v. PAUL BUNDY

NOT FOR PUBLICATION WITHOUT THE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.

PAUL BUNDY,

Defendant-Appellant.

______________________________________

December 5, 2014

Submitted September 29, 2014 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1607.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).

MaryEva Colalillo,Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Paul Bundy appeals from the denial without a hearing of his petition for post-conviction relief (PCR), which claimed ineffective assistance of trial counsel at sentencing, and an insufficient factual basis at the plea hearing to support the conviction. We affirm.

I.

The grand jury charged defendant with ten counts, including first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), (7); third-degree terroristic threats, N.J.S.A. 2C:12-3(a)-(b); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

Pursuant to a negotiated plea agreement, defendant entered a guilty plea to the second count of the indictment, charging second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). The plea agreement included a recommendation of a sentence of ten years in prison, with 85% percent parole ineligibility.

In support of his guilty plea, defendant testified under oath to the following. On November 25, 2008, he was in a residence that did not belong to him, where he came into contact with his ex-wife. He took out a knife and stabbed her repeatedly, intending to cause bodily injury, and he did cause her "serious bodily injuries," including potentially puncturing her lungs.

On March 12, 2010, the trial court held a sentencing hearing. Defense counsel repeatedly noted defendant's "extreme remorse," stated there was "maybe an alcoholic beverage factor in this case that may have caused my client to act in the fashion that [he] acted," and requested the court impose the sentence recommended in the negotiated plea.

The court weighed the aggravating and mitigating factors quantitatively and qualitatively prior to sentencing, and noted that the presentence report showed that defendant had "prior contact with the court system." That prior contact included twelve Municipal Court convictions, with a thirteenth matter pending, and five felony convictions. The court found the following aggravating factors: the risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of his offenses, N.J.S.A. 2C:44-1(a)(6); and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-(a)(9). The court found no mitigating factors. The court found the plea agreement "fair and in the interest of justice" and sentenced defendant to the recommended sentence. Defendant did not file a direct appeal.

Two years later, defendant filed a PCR petition. On November 9, 2012, after hearing argument, the PCR court rendered an oral opinion denying defendant's petition without an evidentiary hearing. Defendant appeals.

II.

To show ineffective assistance of counsel, a defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid.

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The 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 279 80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). In the context of a guilty plea, the defendant must show "'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. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (citation omitted); (accord Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)(citation omitted). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.

If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" of its ruling. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

III.

Defendant first argues that he suffered ineffective assistance of counsel because his attorney did not argue any mitigating factors at sentencing. In particular, defendant asserts that his attorney should have advanced mitigating factors N.J.S.A. 2C:44-1(b)(4) and (12).

N.J.S.A. 2C:44-1(b)(4) applies if "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." Defendant argues this mitigating factor is applicable because of his "intoxication at the time the crime was committed." Defendant stated in the presentence report that "he was under the influence of alcohol." However, as the PCR court found, defendant proffered no affidavits or evidence to show that he was intoxicated when he stabbed his ex-wife.

Furthermore, "[e]ven if it were established that defendant was in fact intoxicated at the time of the crime, the trial court would not be required to consider such intoxication as a mitigating factor." State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). "'Crimes committed under the influence of alcohol or drugs do not detract from the seriousness of the offense.'" Ibid. (citation omitted). Additionally, defense counsel did mention "an alcoholic beverage factor" at sentencing. Thus, the PCR court correctly concluded that not further pursuing intoxication as a mitigating factor did not constitute ineffective assistance of counsel, and there was no reason to believe that defendant was prejudiced.

N.J.S.A. 2C:44-1(b)(12) applies if the defendant demonstrated the "willingness . . . to cooperate with law enforcement authorities." Defendant argues this mitigating factor applies because he "entered a guilty plea and by doing so, cooperated with law enforcement authorities." However, this mitigating factor does not apply to every defendant who pleads guilty, but only to defendants who are willing to provide assistance to law enforcement. See, e.g., State v. Dalziel, 182 N.J. 494, 498, 505-06 (2005) (testimony against a co-defendant); State v. Henry, 323 N.J. Super. 157, 166-67 (App. Div. 1999) (same).

In State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008), the defendant argued that confessing to robbing a bank constituted "willingness . . . to cooperate with law enforcement authorities," under N.J.S.A. 2C:44 1(b)(12). We doubted whether a confession qualifies as "cooperation" with regard to this mitigating factor, "at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes, and in any event, defendant's confession was not entitled to any substantial weight in determining his sentence in view of its limited benefit to the State." Ibid. Here, defendant simply pled guilty without a prior confession, and did not assist law enforcement regarding other perpetrators or other crimes. Accordingly, counsel was not ineffective in not arguing this inapplicable mitigating factor.

Defendant notes that "failure to present mitigating evidence or argue for mitigating factors [can be] ineffective assistance of counsel even within the confines of the plea agreement." State v. Hess, 207 N.J. 123, 154 (2011). However, our Supreme Court made clear that failure to present mitigating evidence or argue for mitigating factors only constitutes ineffective assistance of counsel when "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Given that the mitigating factors defendant identifies are inapplicable, arguing them would not have yielded a different result.

Trial counsel successfully negotiated a plea in which the recommended sentence was dramatically less than what defendant faced if tried and convicted on all counts of his indictment. In fact, at the plea hearing, the court even complimented defense counsel, stating, "that was a good negotiation in terms of minimizing the sentence." Accordingly, defendant has failed to satisfy either prong of Strickland.

IV.

Defendant also argues that he did not "provide a factual basis at the plea hearing to support a conviction of [second-degree] aggravated assault," because the wounds he "inflicted upon the victim did not constitute serious bodily injury as required by N.J.S.A. 2C:12-1(b)(1)." Defendant argues that he merely "caused bodily injury to another with a deadly weapon, a knife, pursuant to N.J.S.A. 2C:12-1(b)(2), a third degree crime." This argument is entirely without merit.

At the plea hearing, defendant twice admitted under oath that he caused "serious bodily injuries" to the victim. Moreover, the medical records defendant proffered showed that the victim suffered seven stab wounds to her abdomen, lower back, and upper back, and a laceration to her left hand. She was hospitalized for eleven days. Her wounds required surgery. This was sufficient to show "[s]erious bodily injury," which is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). Defendant thus provided an adequate factual basis for the trial court to find he "[a]ttempt[ed] to cause serious bodily injury to another, or cause[d] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1(b)(1).

In any event, a challenge to the plea colloquy is barred by Rule 3:22-4(a), as it could have been raised in defendant's direct appeal. A PCR petition is not "a substitute for appeal." R. 3:22-3. To avoid piecemeal proceedings, State v. Mitchell, 126 N.J. 565, 584-85 (1992), a defendant "is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal," State v. Nash, 212 N.J. 518, 546 (2013) (citing R. 3:22-4(a)). This bar does not apply if "(1) the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) [the] enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice[.]" R. 3:22-4(a).

Here, defendant reasonably could have raised on direct appeal "the absence of 'a factual basis for his plea.'" State v. Butler, 89 N.J. 220, 224 (1982) (quoting R. 3:9-2); State v. Mitchell, 374 N.J. Super. 172, 175 (App. Div. 2005). Moreover, as set forth above, he cannot show fundamental injustice. R. 3:22-4(a)(2); see Nash, supra, 212 N.J. at 546-47. Indeed, defendant stresses he does not seek to vacate his conviction, but only to obtain a new sentencing hearing. He has not demonstrated a right to either.

Defendant also contends trial counsel was ineffective for recommending that he plead guilty to second-degree aggravated assault. Defendant bases that contention on his assertion that the medical evidence did not show serious bodily injury. Because we have already rejected that assertion, and because trial counsel negotiated a highly favorable plea agreement and sentence, defendant's contention is meritless. The PCR court properly denied his petition without a hearing.

Affirmed.