STATE OF NEW JERSEY v. THEENDS BROWN

NOT FOR PUBLICATION WITHOUT THE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.

THEENDS BROWN,

Defendant-Appellant.

________________________________

January 15, 2014

Submitted January 8, 2014 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-0874.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Theends Brown appeals from the October 28, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant contends that he received ineffective assistance of plea counsel. We affirm.

Defendant was charged in a five-count Camden County indictment with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count five). Defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, under count one in exchange for the State's agreement to dismiss the remaining counts and recommend a twelve-year term of imprisonment, subject to the No Early Release Act, ("NERA"), N.J.S.A. 2C:43-7.2.

At sentencing, defendant's plea counsel asked the trial judge "to consider accepting the plea agreement." Although counsel did not raise any specific mitigating factors, the trial judge stated he had "looked carefully at the mitigating factors." He found mitigating factor nine, N.J.S.A. 2C:44-1b(9), "the character and attitude of the defendant and whether or not that would indicate that [defendant was] unlikely to commit a crime" in the future. While the judge found that defendant might finally be "recogniz[ing] the need to change," he stated he could only give this factor "minimal weight" based upon defendant's prior criminal history.

The judge stated that he had considered the "other factors," but he did not find that any other mitigating factors were applicable. He explained that he reviewed, but ultimately rejected, mitigating factor two, N.J.S.A. 2C:44-1b(2), because defendant's use of a handgun did not support a finding that he did not contemplate that his conduct would cause or threaten "serious harm." The judge also found that mitigating factor three, N.J.S.A. 2C:44-1b(3), was inapplicable and stated that defendant did not act under strong provocation because he "had the ability to avoid this confrontation" with the victim. The judge then sentenced defendant to a twelve-year term in accordance with the negotiated plea. Defendant did not file a direct appeal.

Defendant filed a petition for PCR contending that his plea counsel was ineffective by failing to (1) argue mitigating factors at sentencing and (2) file a motion to suppress, a motion to dismiss the indictment, and a motion for a bill of particulars. The PCR judge denied the petition, finding that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that defense counsel's performance was deficient and that, but for the deficient performance, the result would have been different. The judge stated that, even if counsel had independently raised mitigating factors for the sentencing court's consideration, it would not have made a difference in the sentence that was imposed pursuant to the negotiated plea. The judge also rejected defendant's remaining contentions. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO HAVE ALL MITIGATING FACTORS CONSIDERED AT SENTENCING, AND DEFENDANT'S SIXTH AMENDMENT RIGHT TO HAVE TRIAL COUNSEL PRESENT A MITIGATING FACTOR ARGUMENT AT SENTENCING, WERE VIOLATED.

POINT II

TRIAL COUNSEL'S FAILURE TO FILE PRE-TRIAL MOTIONS TO SUPPRESS, TO DISMISS THE INDICTMENT, AND FOR A BILL OF PARTICULARS WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

We have considered these contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

A petition for PCR "is not . . . a substitute for appeal from conviction . . . ." R. 3:22-3. Thus, "[a]ny ground for relief not raised . . . in any appeal taken in any such proceedings is barred from assertion in a [petition for PCR] unless the court . . . finds . . . that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding[.]" R. 3:22-4(a)(1). In his petition for PCR, defendant argued that his sentence was excessive because his attorney failed to argue for any mitigating factors. However, defendant could have, but did not, appeal his sentence on our excessive sentence calendar pursuant to Rule 2:9-11. Thus, his claims regarding his sentence are barred by Rules 3:22-3 and 3:22-4(a)(1).

Even if defendant's claims concerning his sentence were not barred, the PCR judge correctly found that they lacked merit. In order for defendant to obtain relief based on ineffective assistance grounds, he was obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant did not make that demonstration here. The sentencing judge stated that, in determining to sentence defendant in accordance with his negotiated plea, he considered the mitigating factors and he made detailed findings concerning his review. Thus, defendant did not show that the result of the sentencing proceeding would have been any different had his attorney specifically raised the mitigating factors that were thereafter thoroughly considered by the judge.

With regard to defendant's claims that his attorney was ineffective because he failed to file several motions, defendant never explains why those motions should have been filed or whether they would have been successful. "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). We are persuaded that the "bald assertions" made by defendant here plainly lacked merit.