STATE OF NEW JERSEY v. BRENDAN JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4897-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENDAN JONES,

Defendant-Appellant.

___________________________________

February 5, 2014

Submitted November 18, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

05-08-3268.

Joseph E. Krakora, Public Defender, attorney

for appellant (Alyssa Aiello, Assistant

Deputy Public Defender, of counsel and on

the brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Jason Magid,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Brendan Jones appeals from denial of his motion for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

On January 30, 2006, defendant pleaded guilty pursuant to a plea agreement to a first-degree charge of armed robbery. He admitted that on April 12, 2005, he had approached a woman in Camden and stuck a BB handgun into her ribs and demanded money. He then stole her purse, which contained $55 in cash. According to the police report, the victim immediately reported the stick-up to the police and gave a description of her assailant, including the clothing he was wearing. A short time later, defendant was apprehended nearby still in possession of the BB gun.

Defendant was indicted for armed robbery and weapons and assault charges. His plea agreement provided for dismissal of the other charges and the prosecution's recommendation that he be sentenced at the bottom of the range for a first-degree crime, ten years imprisonment subject to the mandatory parole ineligibility and parole supervision requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On March 17, 2006, the court sentenced him in accordance with the plea agreement to ten years imprisonment subject to NERA, five years of parole supervision following his release from custody, and mandatory money penalties.

Defendant did not file a direct appeal. In May 2011, more than five years after the judgment of conviction was entered, defendant filed a pro se petition for post-conviction relief. Counsel was appointed and filed supplemental arguments on behalf of defendant's petition, and the State filed a response. Defendant argued that his defense counsel at the time of his guilty plea and sentencing had been ineffective because she failed to advise him that the prosecution had set a deadline on his acceptance of an eight-year plea offer, which had been extended when he had first appeared in court on the charges. He also argued that his attorney had been ineffective at his sentencing because she failed to present arguments for a sentence below ten years. The PCR court issued a comprehensive written decision denying defendant's petition.

On appeal before us, defendant argues:

POINT ONE

THE PCR COURT ERRED IN FINDING THAT JONES' PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.

A. In Light of the Nature of Jones' PCR

Claims and the Lack of Prejudice to the

State if Jones is Permitted to Pursue

These Claims, Jones' Delay in Filing His

Petition Should Be Excused.

B. Jones' PCR Claims, Which Involve

Ineffective Assistance of Counsel, Could

Not Have Been Raised on Direct Appeal.

POINT TWO

JONES ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND, THUS, WAS ENTITLED TO AN EVIDENTIARY HEARING.

We have reviewed the record and the briefs of counsel on appeal. We affirm the decision of the trial court essentially for the reasons stated by Judge Michael Haas in his written decision of January 13, 2012. We briefly add the following.

At the time of his sentencing, defendant was twenty-four years old and his record of prior arrests and convictions consisted of only one municipal court conviction for possession of a controlled dangerous substance. That conviction was from 2001, and defendant had been sentenced to a term of probation, which he had completed at the time of the robbery offense of this case.

In sentencing defendant on the first-degree charge of armed robbery, the court could properly reject a finding of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), based on the prior municipal court offense, but it could not properly find that aggravating factor six, N.J.S.A. 2C:44-1(a)(6), applied to defendant's sentence. The single, relatively minor offense did not warrant application of aggravating factor six. However, the sentencing court expressed a full awareness that defendant's record was not serious, and the application of that aggravating factor did not affect the sentence he received. Its inclusion by the court was harmless error.

Defendant received the recommended sentence at the bottom of the range for a first-degree crime. As the PCR judge concluded in his written decision, there was no basis to conclude that defendant might realistically have received anything less, specifically, a sentence pursuant to N.J.S.A. 2C:44-1(f)(2) and State v. Megargel, 143 N.J. 484 (1996), in the second-degree range. Defense counsel could not have been ineffective for failing to make a sentencing argument that had no prospect of success.

In all other respects argued on appeal, we agree with the findings and conclusions of Judge Haas's written decision.

Affirmed.