STATE OF NEW JERSEY v. CLIFFORD GRABOWSKI

NOT FOR PUBLICATION WITHOUT THE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.

CLIFFORD GRABOWSKI,

Defendant-Appellant.

July 21, 2015

Submitted June 23, 2015 Decided

 
Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-03-0502.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Clifford Grabowski appeals from the December 11, 2013 Law Division order denying his petition for post-conviction relief (PCR) based on ineffective assistance of counsel claims. For the reasons that follow, we affirm.

I

On March 15, 2008, while driving with a blood alcohol content (BAC) of .213 percent at approximately eighty miles per hour, defendant struck another vehicle from the rear, pushing it off the road and killing the driver, sixty-six-year-old Lorraine Rosatelli. Defendant's vehicle then veered into oncoming traffic and struck a second car, seriously injuring that driver, Terrance L. Dekle.

Defendant was charged with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one); third-degree causing death while operating a motor vehicle with a suspended driver's license, N.J.S.A. 2C:40-22(a) (count two); and thirddegree assault by auto, N.J.S.A. 2C:12-1(c)(2) (count three). He was also charged with motor vehicle offenses, most notably, driving while intoxicated (DWI), N.J.S.A. 39:4-50.

Defendant entered a guilty plea to first-degree aggravated manslaughter and DWI. The remaining charges were dismissed, including the assault by auto count involving the second victim.

On January 20, 2012, defendant was sentenced, pursuant to the negotiated plea, to ten years imprisonment on the aggravated manslaughter, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the DWI, his fourth offense, the court imposed a concurrent 180-day jail term and a ten-year license suspension. Appropriate fines and penalties were also imposed.

At the sentence hearing, defendant's attorney informed the judge that his forty-four-year-old client recently married and had a young child. He also stated that defendant had "done whatever he could do to be sober" and become "a family man." Defendant had no prior criminal history, but the prosecutor described his "horrendous motor vehicle record," detailed in a twelve-page motor vehicle abstract. Defendant had previously been convicted of DWI in 1992, 1996, and 2001.

The sentencing judge found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), among other reasons, because despite prior sentences, defendant was unable to comply with the motor vehicle laws and his BAC at the time of the crash was more than twice the legal limit. He also found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), given defendant's repeated DWI convictions, and nine, N.J.S.A. 2C:44-1(a)(9), the need to deter him and others from driving while impaired. The judge considered factor nine to be of particular weight, because defendant's prior sentences had not kept him from driving while drunk. In mitigation, the judge found only factor seven, that defendant had no prior criminal history. See N.J.S.A. 2C:441(b)(7). In the balance, he concluded that the aggravating factors outweighed the single mitigating factor. Nonetheless, he imposed the negotiated ten-year term, the lowest possible number of years for a first-degree crime.

Defendant filed a pro se appeal on March 5, 2012, and we directed the trial judge to conduct a Coon1 hearing. After the hearing, defendant was permitted to represent himself, but unfortunately his direct appeal was ultimately dismissed because of his failure to supply transcripts. On October 29, 2012, defendant filed a pro se motion to withdraw his guilty plea, which was denied.

On January 14, 2013, defendant filed this PCR petition, also pro se. Assigned counsel then filed an amended petition, a certification, and a brief. The judge denied the application after oral argument and rendered an oral opinion from the bench.

The judge agreed that the sentencing judge's use of aggravating factor two may have been double-counting, but he opined that it was sheer speculation to argue, given defendant's history and the circumstances surrounding the vehicular homicide, that the elimination of that factor would have resulted in a lesser sentence. Defendant's attorney did not advance mitigating factors for the sentencing judge's consideration, but he did inform the court of defendant's improved family situation. The PCR judge observed that counsel's failure to argue mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), may have been due to the tactical concern that stressing the loss to defendant's family from his imprisonment would have highlighted the permanent loss experienced by the victim's family members. Additionally, the expert's report that estimated that defendant had been traveling at seventy-six miles per hour, as opposed to eighty, was not helpful at sentencing since the two speeds were not that different. Disclosure of this report to the sentencing judge would have had no effect on the imprisonment term that was imposed.

Finally, the judge found that defendant's PCR petition was procedurally barred by Rules 3:22-2 and 3:22-4 because the heart of defendant's attack on his attorney's representation was that he received an excessive sentence. The issue of excessive sentence, however, is only cognizable on direct appeal. Since defendant did not pursue his direct appeal, he was therefore barred from raising the argument by way of PCR pursuant to Rule 3:22-4. Having found all of defendant's arguments lacking in merit, no prima facie case was established and the judge denied the petition without a hearing.

On appeal, defendant raises the following points for our consideration

POINT I

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS PROCEDURALLY BARRED.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.

B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Vigorously Argue On Defendant's Behalf At Sentencing And To Present All Mitigating Factors That Applied To Defendant.

C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied The Effective Assistance Of Trial Counsel.

II

To demonstrate ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).

"When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would not have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012); see also State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009).

We consider defendant's arguments that his attorney was ineffective because he failed to raise mitigating factors to be entirely lacking in merit. Defendant was well aware of the horrors wrought by drunken driving as this was his fourth DWI offense. The record simply does not support any claim that, for example, defendant did not contemplate that his conduct would cause or threaten serious harm. See N.J.S.A. 2C:44-1(b)(2). Nothing in the record supports the assertion that defendant was unlikely, in the future, to drive while drunk. See N.J.S.A. 2C:441(b)(9). Similarly, nothing in the record supports the claim that he was likely to respond affirmatively to probationary treatment. See N.J.S.A. 2C:44-1(b)(10).

Defense counsel's failure to urge the sentencing court to consider mitigating factors for which there was no record support is not ineffective assistance of counsel. These points do not warrant further discussion in a written opinion. R. 2:113(e)(2).

Defendant also contends that counsel was ineffective because he failed to argue at sentencing for a lesser term of imprisonment than the negotiated ten years. We agree with the judge who decided the PCR matter on that score. Rule 3:22-2(c) explicitly excludes "a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law" from PCR. Here, defendant argues his sentence was excessive, not that it was illegal. PCR will not be granted on excessive sentence grounds. State v. Acevedo, 205 N.J. 40, 46 (2011). Excessive sentence challenges must be raised on direct appeal. Therefore this claim is barred by Rule 3:22-4.

It was improbable that after a trial defendant would have been sentenced in the second-degree range for the vehicular homicide because this was his fourth DWI. Additionally, even if the mitigating factors defendant now raises had been argued, it is unlikely that he would have received a lesser sentence because the plea bargain deleted the second victim from the calculation. Defendant benefited from the dismissal of a potentially consecutive sentence for the third-degree assault on the second victim. The sentence imposed was the lowest possible term in the first-degree range. Defendant thus fails to establish that but for his attorney's errors, he would have gone to trial.

Defendant, as a matter of law, has therefore failed to meet either prong of the Strickland test. He has not demonstrated that his attorney's performance was deficient nor any reasonable probability that he would have gone to trial if he had been otherwise advised. Thus, even viewing the facts in the light most favorable to defendant, no prima facie case was established. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Accordingly, the judge properly denied defendant's request for an evidentiary hearing.

Affirmed.

1 State v. Coon, 314 N.J. Super. 426 (App. Div.), certif. denied, 157 N.J. 543 (1998).