STATE OF NEW JERSEY v. ALFRED DEAN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

ALFRED DEAN,

Defendant-Appellant.

__________________________

December 9, 2015

Submitted November 17, 2015 - Decided

Before Judges Reisner and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-08-2329.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Alfred Dean appeals from a March 21, 2014 order denying his petition for post-conviction relief (PCR). We affirm.

Pursuant to a negotiated plea agreement, on August 20, 2010, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). Specifically, he admitted that he molested a five-year-old girl. During his pre-sentence interview at the Adult Diagnostic Treatment Center (ADTC), defendant revealed that he had molested other victims.

Without objection from the defense, at defendant's sentencing hearing, the court acknowledged receipt of written statements from several other individuals who claimed to be defendant's victims and permitted those statements to be included in defendant's pre-sentencing report. However, the judge would not permit those individuals to speak at the sentencing hearing. She did allow a statement to be read from a family member whom defendant had admitted molesting, in his ADTC interview. At the hearing, the prosecutor stated on the record that all of the victims' statements might be relevant at a later time, when defendant was considered for post-release Megan's Law tiering, or for possible civil commitment proceedings.

The judge considered the ADTC report in determining that there was a risk that defendant would commit another crime. In light of defendant's admission during the ADTC interview, that he had molested other children, the judge also found that she could not consider as a mitigating factor his lack of prior convictions. The judge acknowledged that defendant was seventy-seven years old. Defendant declined to address the court at sentencing.

Despite finding that the aggravating factors outweighed the mitigating factors, the judge honored the plea agreement. Consistent with the agreement, defendant was sentenced to ten years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which was the minimum sentence for first-degree aggravated sexual assault. The sentence was to be served at the ADTC.

In January 2013, defendant filed a PCR petition, alleging that his trial attorney was ineffective in failing to attempt to obtain a more favorable plea agreement for him. In an amended petition, defendant contended that his trial counsel should have argued mitigating factors at sentencing, including his previous law-abiding life, his advanced age of seventy-seven, his health problems, the hardship incarceration would pose to him, and his cooperation with law enforcement in incriminating a codefendant.

In a June 17, 2013 certification in support of the amended petition, defendant acknowledged that at his sentencing hearing, victims other than the victim of this particular offense had made statements. In his certification defendant stated that, at the sentencing hearing, he had wanted to apologize to all of his victims

At sentencing I wanted to address the court and my victims and express to them how sorry I was for what I had done to them. I knew I had a problem and that I needed help. However, I was afraid to make any statements at sentencing due to my fears of incurring the anger of the court and the victims who were in the court room.

In a thorough oral opinion issued on March 21, 2014, Judge Michele M. Fox considered and rejected all of defendant's PCR arguments. Among other things, she found that the court was not required to consider defendant's lack of prior convictions as a mitigating factor where, as here, defendant admitted that he had molested several other children although he had never been convicted of those crimes. She also determined that, even if the court had considered the other mitigating factors defendant claimed his counsel should have raised, it would not have resulted in the imposition of a lower sentence.

On this appeal, defendant raises an issue he did not present to the PCR court

COUNSEL FOR PETITIONER WAS INEFFECTIVE IN THAT HE AGREED THAT THE VICTIM IMPACT STATEMENTS OF PEOPLE WHO WERE NOT NAMED VICTIMS, WHO HAD NEVER PRESSED CHARGES, AND FOR WHICH ALLEGED OFFENSES PETITIONER WAS NEVER TRIED, COULD BE MADE PART OF PETITIONER'S PRE-SENTENCE REPORT. THE EFFECT OF THIS WAS THAT PETITIONER SHOWED A RECORD OF SEXUAL MOLESTATIONS FOR PRISON CLASSIFICATION THAT WILL RESULT IN MUCH HARSHER PUNISHMENT THAN CALLED FOR BY THE PLEA BARGAIN, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS.

We agree that a court cannot consider, as an aggravating factor, the harm a defendant has caused to victims other than the victim against whom he committed the charged offense. See State v. Lawless, 214 N.J. 594, 600 (2013). However, that did not happen in this case. Moreover, it appears, even from his own PCR certification, that defendant wanted his other victims to come forward so that he could apologize to them. To the extent the trial judge considered defendant's admission that he molested other children as negating mitigating factor seven (defendant has previously led a law-abiding life), the judge was correct. See N.J.S.A. 2C:44-1(b)(7); State v. Rice, 425 N.J. Super. 375, 382 (App. Div.), certif. denied, 212 N.J. 431 (2012).

Defendant's remaining arguments do not concern sentencing at all, but rather the possible impact of the PSR on a future civil commitment or parole proceeding. Defendant may raise his arguments in the context of those proceedings. We decline to consider his contentions for the first time on this appeal. See State v. Robinson, 200 N.J. 1, 19-20 (2009).

Affirmed.