STATE OF NEW JERSEY v. CHARLES POE

NOT FOR PUBLICATION WITHOUT THE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.

CHARLES POE,

Defendant-Appellant.

______________________________

June 15, 2015

Submitted May 12, 2015 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-03-0223.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor,attorney for respondent(Rachel G. Cook, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a May 31, 2013 order denying his petition for post-conviction relief ("PCR") without a hearing. He contends that his prior appellate counsel provided ineffective assistance. We affirm.

In March 2005, defendant and his co-defendant, Amanda Dembowski, were indicted for the first-degree murder of Kenyatta Ward, in violation of N.J.S.A. 2C:11-3a(2) and N.J.S.A. 2C:2-6. After Ward's body was discovered in 2004, defendant and Dembowski were taken to a police station where defendant gave a statement admitting he handcuffed Ward and held her down as Dembowski suffocated her with a plastic bag. Dembowski entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A 2C:11-4a(1), pursuant to an agreement with the State that she would testify against defendant and would receive a fifteen-year sentence with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

Defendant filed a pre-trial motion to suppress his statements given to the police, which was denied. Defendant's first trial resulted in a mistrial and his second trial resulted in a finding that he was guilty of first-degree murder. On January 9, 2007, Dembowski was sentenced in accordance with her plea agreement and defendant was sentenced to life in prison with an eighty-five percent period of parole ineligibility under NERA. Defendant appealed, and we affirmed. State v. Poe, No. A-0555-07 (App. Div. October 20, 2009), certif. denied, 201 N.J. 274 (2010).

In December 2010, defendant filed a pro se petition for PCR. PCR counsel supplemented defendant's initial petition, alleging trial and appellate counsel were ineffective. Following oral argument, the Honorable Thomas M. Sumners, Jr. denied defendant's petition with an order and written opinion on May 31, 2013.

On appeal, defendant raises the following argument

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF APPELLATE COUNSEL'S INEFFECTIVENESS FOR NOT RAISING THE EXCESSIVE DISPARITY OF HIS SENTENCE AND HIS CO-DEFENDANT'S SENTENCE.

We have considered this argument in light of the record and the applicable legal standards, and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-2(e)(2). We affirm substantially for the reasons expressed in the thorough written opinion of Judge Thomas M. Sumners, Jr. We add the following brief remarks.

Judge Sumners, having found that defendant's sentencing disparity argument had not been previously adjudicated and was therefore not barred by Rule 3:22-5, considered whether appellate counsel's failure to raise the issue of sentencing disparity demonstrated deficient performance and prejudice under the two-part Strickland/Fritz test.1

The test provides that a criminal petitioner seeking relief on the grounds of ineffective assistance of counsel must establish (1) deficient performance of counsel such that a defendant was denied the Sixth Amendment's guarantee of counsel; and (2) prejudice to the petition resulting from counsel's deficient performance, such that the petitioner was deprived of a fair trial and reliable result. 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).

Here, we agree with Judge Sumner's conclusion that defendant did not show deficient performance or prejudice under the Strickland/Fritz test. Recognizing that while "equally culpable perpetrators" should not receive unequal punishments, "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter" if the disparity is justifiable. State v. Roach, 146 N.J. 208, 232-33 (alteration in original) (citation and internal quotations marks omitted), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

A review of the record demonstrates that Dembowski pleaded guilty to a different offense, faced a different sentencing range, and was in a substantially different position than defendant at sentencing due, in part, to her cooperation. Moreover, Dembowski and defendant had significantly different aggravating and mitigating factors. Given the different positions they were in, it was not deficient performance for appellate counsel to omit an argument about disproportionate sentencing. Furthermore, at sentencing defendant's trial counsel asked for a lesser sentence, drawing attention to Dembowski's sentence and level of culpability. Those arguments were unpersuasive to the sentencing judge.

We also agree that a plenary hearing was not warranted. "[T]o the extent that a petition for [PCR] . . . involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). Moreover

[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.

[R. 3:22-10(b).]

Here, Judge Sumners correctly determined that no such prima facie case was established, as there was no reasonable likelihood of showing deficient performance or prejudice under the Strickland/Fritz test.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).