STATE OF NEW JERSEY v. ALVERO VILLANUEVA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3677-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

ALVERO VILLANUEVA,

Defendant-Appellant.

___________________________________

April 16, 2014

Submitted January 7, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County, Accusation Nos. 08-12-3951, 08-12-3952.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Alvero Villanueva appeals from the Law Division's December 16, 2011 denial of his motion for post-conviction relief (PCR) without a hearing. In support of this appeal, defendant's designated counsel raised the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT HOLDING AN EVIDENTIARY HEARING TO DETERMINE WHETHER HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel was Ineffective for Failing to Argue at Sentencing That Mitigating Factor Four Applied to the Defendant.

B. Trial Counsel was Ineffective for Failing to Argue to the Sentencing Court that Mitigating Factor Six Applied to the Defendant.

C. Defendant Was Prejudiced By Trial Counsel's Failure to Argue Mitigating Factors That Would Have Lead The Court To Sentence The Defendant A Degree Lower Pursuant to N.J.S.A. 2C:44-1(f)(2).

D. Both Ineffective Assistance Prongs Under the Strickland/Fritz test are Satisfied Entitling the Defendant to an Evidentiary Hearing.

In a supplemental brief filed by defendant, he added the following arguments:

SUPPLEMENT TO POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST CONVICTION RELIEF WITHOUT HOLDING AN EVIDENTIARY HEARING TO DETERMINE WHETHER OR NOT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

E. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THAT THE DEFENDANT'S MIRANDA1 RIGHTS WERE VIOLATED UPON HIS ARREST, AND FOR FAILING TO REQUEST A MIRANDA HEARING BEFORE PLEA BARGAINING.

F. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE FOR MITIGATING FACTOR 12.

G. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT DEFENDANT BE ENROLLED INTO A DIVERSION PROGRAM OR PRE-TRIAL INTERVENTION PROGRAM IN LIEU OF RECEIVING A PRISON SENTENCE.

H. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A NOTICE OF APPEAL DURING AND AFTER SENTENCING.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

On December 24, 2008, defendant waived indictment and pled guilty to two accusations, one charging him with one count of first-degree carjacking, N.J.S.A. 2C:15-2(a)(2), and the other charging him with one count of first-degree robbery, N.J.S.A. 2C:15-1. Pursuant to a plea agreement, the State agreed to recommend a sentence of ten years incarceration on each accusation to run concurrently, subject to defendant serving eighty-five percent of that sentence without parole eligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to dismiss "all juvenile matters[2] now pending," which included first- and second- degree charges for weapons offenses, N.J.S.A. 2C:39-4(a), 39-5(b); aggravated assault, N.J.S.A. 2C:12-1(b)(1); another robbery charge, N.J.S.A. 2C:15-1(a)(1); and attempted homicide, N.J.S.A. 2C:5-1, 11-3. It further agreed that defendant would receive a negotiated amount of jail credit on each accusation. In exchange, defendant not only agreed to plead guilty, but also waived his right to appeal. At his plea hearing, defendant admitted that on August 19, 2008, he attempted to steal a car by threatening its occupants with a gun; and that on or about August 23, 2008, he attempted to rob an individual during which he shot the victim in the head.3

At defendant's later sentencing, his counsel requested that the court sentence defendant in accordance with the plea agreement, and defendant chose not to address the court himself. The court then said it had reviewed the presentence report and found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense), and nine, (a)(9) (need to deter defendant and others from violating law) applicable, but found no mitigating factors.4 Thus, the court found "[t]he aggravating factors far outweigh the mitigating factors." Nevertheless, it sentenced defendant in accordance with the plea agreement, to ten years in prison on each accusation, with the sentences to run concurrently and subject to NERA.

Defendant did not appeal from his sentence, but filed a PCR petition in 2010. On December 16, 2011, the court heard argument on defendant's motion. At the hearing, PCR counsel acknowledged that the trial court sentenced defendant to the lowest end of the range for a first degree crime. However, he contended that if sentencing counsel had argued the presence of mitigating factors four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct, though failing to establish a defense), and six, (b)(6) (defendant has or will compensate victim for damage or injury sustained, or will do community service), the sentencing court would have found that the mitigating factors "preponderated over the aggravating factors," and could have sentenced defendant within the second-degree crime range, pursuant to N.J.S.A. 2C:44-1(f)(2). PCR counsel further argued that those mitigating factors were supported by defendant's alleged drug addiction, and the fact that he indicated on the plea form that he understood the court could require him to pay restitution to his victims. In response, the State argued that mitigating factors four and six did not apply to defendant because "a mere history of drug abuse is not a mitigating factor," and there was no proof by way of affidavits or certifications proving defendant could make restitution. Moreover, the State argued, even if there were mitigating factors, the nature of the crimes did not justify giving them any great weight.

After considering counsels' arguments, the PCR court denied defendant's motion. In its opinion, it first determined that defendant failed to establish that sentencing counsel's performance was deficient, under the first prong of the Strickland5 test. The court found that defendant's claims in support of mitigating factor four, that he suffered from drug addiction or that there was some other "extraordinary circumstances," were wholly unsupported by any facts in the record, except for arguments in counsel's brief. The judge also relied upon the Court's decision in State v. Ghertler, 114 N.J. 383, 390 (1989), in determining that "drug addi[c]tion without more is not a sufficient basis to give rise to the presence of mitigating factor four." Also, the judge rejected defendant's argument that mitigating factor six applied, because there was never a request for restitution and the record established that defendant "had no job, no history of employment, no assets, no income, no finances whatsoever, from which . . . he could possibly make restitution."

Moreover, even if there was support for these mitigating factors, the judge found that they could not have outweighed the aggravating factors to the extent that would permit sentencing defendant within the second degree crime range.6 Thus, defendant could not satisfy the second prong of the Strickland test, as consideration of the mitigating factors would likely not have affected the sentencing outcome. In deciding this prong, the court relied upon the seriousness of the offenses, and the fact that they were consecutive crimes for which defendant received concurrent sentences at the lowest end of the range for a first degree crime.

Thus, as a result of defendant's failure to establish even a prima facie showing of entitlement to relief, the court ruled that an evidentiary hearing was not needed, citing State v. Preciose, 129 N.J. 451 (1992), and State v. Marshall, 148 N.J. 89 (1997), and denied defendant's motion. This appeal followed.

II.

Because the PCR court did not conduct an evidentiary hearing, we review the "factual findings and legal conclusions" de novo to determine if we should disturb the PCR court's determination. 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). A claim of ineffective assistance of counsel requires a "show[ing] that counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To this end, a defendant must satisfy a two-part test set forth by the United States Supreme Court in Strickland, supra, and present evidence that 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The Strickland standard serves not only to test for violation of the Sixth Amendment right to counsel, ibid., but has also been adopted by this State as the test for a violation of the New Jersey Constitution, article 1, paragraph 10, under which "a criminal defendant is entitled to the assistance of reasonably competent counsel." State v. Fritz, 105 N.J. 42, 53-58 (1987). This standard applies to defense counsel's performance throughout all stages of a defendant's adjudication, including sentencing. State v. Hess, 207 N.J. 123, 153 (2011) (citing McConnell v. Rhay, 393 U.S. 2, 4, 89 S. Ct. 32, 34, 21 L. Ed 2d 2, 4 (1968)).

In deciding the application, a PCR court may exercise its discretion to grant or deny an evidentiary hearing. Preciose, supra, 129 N.J. 462 (citing R. 3:22-10(e)). An evidentiary hearing should be conducted if the relevant facts lie outside the trial record and the attorney's testimony may be required. State v. Porter, 216 N.J. 343, 354 (2013) (citing Preciose, supra, 129 N.J. at 462). To obtain an evidentiary hearing, a defendant must present a prima facie case in support of his PCR, ibid. (citing Preciose, supra, 129 N.J. at 354); State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), meaning a "reasonable likelihood of succeeding" on the merits, Preciose, supra, 129 N.J. 463.

"As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-463. However, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel[, but] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10e(2) ("A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative[.]").

We are satisfied from our review of the record that defendant failed to meet his burden to establish a prima facie claim of ineffective assistance of counsel. To satisfy the first prong of Strickland, defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693) (internal quotations omitted). However, when considering a defendant's proofs, a court must show "extreme deference" in assessing defense counsel's performance, ibid., and "indulge a strong presumption that [it] falls within the wide range of reasonable professional assistance," Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment[.]" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

Defendant contends that his sentencing counsel did not provide him with the assistance to which he was entitled by failing to argue for mitigating factors in support of a request for a shorter terms of imprisonment. R. 3:21-4(b) ("Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney."); State v. Blackmon, 202 N.J. 283, 297-98 (2010). A plea agreement with a recommended sentence does not prevent "a defense attorney from presenting or arguing mitigating evidence to the sentencing court," as such a restriction would "deprive[] the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors." Hess, supra, 207 N.J. at 153; State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002) ("[A] defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement."). Counsel has a duty to argue for a lesser sentence when supported by the facts. Hess, supra, 207 N.J. at 154. However, we agree with the PCR judge that there were no facts advanced in defendant's petition to support mitigating factors four and six.

Defendant does not demonstrate how counsel's performance was deficient for not raising defendant's alleged drug dependency as a basis for arguing mitigating factor four, when it would not have had any bearing on the court's consideration of his sentence. See Ghertler, supra, 114 N.J. at 390 (declining to "adopt the proposition that one who demonstrates that the motive for unlawfully acquiring the funds of another was to purchase cocaine has satisfied the mitigating factor [four]"). Similarly, he offers no support for his claim that he agreed to make restitution in support of factor six, evidently because there was no such agreement made as part of the plea agreement. Without supporting facts that would justify sentencing counsel raising the cited factors, there can be no finding that his performance was in any manner deficient.

Even if defendant is correct that sentencing counsel should have argued that the two mitigating factors applied, there is nothing in the record to support defendant's belief that he would have received a shorter term of imprisonment from the court. He therefore fails to satisfy the second prong of Strickland, which requires a "reasonable probability" that, but for his counsel's deficient conduct or errors, the proceeding's outcome would have been different. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

In this case, even if his sentencing counsel had argued for more favorable, shorter sentence in the second degree, there is no showing of a reasonable probability that the court would have imposed a different sentence. As the PCR court noted, there is no evidence in the record to support giving any significant weight to the mitigating factors argued by defendant. The aggravating factors would have most likely preponderated over the two mitigating factors. Additionally, defendant had received a significant benefit by striking the plea bargain with the State that limited his exposure to a maximum of ten years, as opposed to the multiple sentences and periods of parole ineligibility he faced if convicted of the separate crimes as originally charged. In short, defendant received a sentence that was at the lowest end of the statutory range of possible sentences, one he expected to receive because he bargained for it, and one that was not excessive. See State v. Soto, 385 N.J. Super. 247, 255 (App. Div.), certif. denied, 188 N.J. 491 (2006) (affirming imposition of sentence that was neither illegal nor excessive and resulted from negotiated plea agreement). Under these circumstances, we have little doubt that even if trial counsel had advanced an argument for a lesser sentence based on the two mitigating factors, it would not have been persuasive in securing a sentence for defendant in the second degree range.

III.

We do not reach the merits of the other points presented in defendant's supplemental brief as they were not raised before the PCR court and they do not involve matters of great public interest. See State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, (1973) (holding appellate courts will decline to consider issues not properly presented to trial court when an opportunity is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (internal quotation marks and citations omitted).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Defendant was sixteen years old when he was charged in juvenile delinquency complaints with all of the subject charges. At defendant's request, on December 24, 2008, the court entered an "Order Granting Voluntary Transfer to the Law Division-Criminal Part (Adult Court)" which transferred all of his charges to the Law Division for prosecution.

3 Thankfully, the shot was not fatal.

4 N.J.S.A. 2C:44-1(b)(1) to (b)(13).

5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

6 N.J.S.A. 2C:44-1(f)(2) provides that,

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.