STATE OF NEW JERSEY v. MICHAEL REBECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL REBECK,

Defendant-Appellant.

________________________________________________________________

October 27, 2016

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0538.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant pled guilty to four counts of first degree armed robbery, N.J.S.A.2C:15-1. The sentencing court imposed an aggregate sentence of twenty years in prison on August 16, 2010. Defendant filed a direct appeal, arguing only that his sentence was excessive. An excessive sentencing panel of this court affirmed his sentence and the Supreme Court denied his petition for certification, State v. Rebeck, 210 N.J.263 (2012).

The facts underlying defendant's conviction are as follows. On October 7, 2008, defendant robbed a gas station using a toy gun. He then robbed a second gas station on two separate occasions, first on October 15, 2008, and again on November 8, 2008. Defendant committed a fourth robbery on May 10, 2010, injuring a gas station attendant with a hammer. Defendant was arrested at the scene. A grand jury later indicted him, charging him withthree counts of first degree armed robbery; three counts of second degree possession of a weapon for unlawful purpose, N.J.S.A.2C:39-4(a); and three counts of fourth degree aggravated assault, N.J.S.A.2C:12-1(b)(4). Additionally, defendant waived indictment and pled to an accusation charging him with first degree armed robbery and second degree aggravated assault, N.J.S.A.2C:12-1(b)(1), stemming from the May 10, 2010 armed robbery.

When defendant pled guilty to four counts of first degree armed robbery, he was facing eighty years in prison. Under his plea agreement, the State recommended a sentence of no more than twenty years and the court subsequently sentenced him in accordance with the agreement.

After we affirmed his sentence and the Supreme Court denied his petition for certification, defendant filed a PCR petition on August 1, 2013, in which he argued

POINT I

THE DEFENDANT'S PLEA BARGAIN WAS RENDERED FUNDAMENTALLY UNFAIR BY PROSECUTORIAL AND POLICE MISCONDUCT AND PREJUDICE, IN VIOLATION OF U.S. CONST. AMENDS. VIII AND XIV AND N.J. CONST. (1947) ART I., PARAS. 1, 5, AND 10.

POINT II

THE DEFENDANT'S PLEA BARGAIN WAS RENDERED FUNDAMENTALLY UNFAIR BY JUDICIAL MISCONDUCT AND PREJUDICE, IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART. I, PARAS. 1, 5, AND 10.

POINT III

THE DEFENDANT'S PLEA BARGAIN WAS RENDERED FUNDAMENTALLY UNFAIR BY INEFFECTIVE ASSISTANCE OF PLEA BARGAIN COUNSEL, IN VIOLATION OF U.S. CONST, AMENDS. I, VI, AND XIV AND N.J. CONST. (1947) ART. I, PARAS. 1, 5, 10, AND 18.

POINT IV

THE DEFENDANT'S APPEAL RIGHTS WERE INFRINGED UPON BY INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, IN VIOLATION OF U.S. CONST. AMENDS. I, VI, AND XIV AND N.J. CONST. (1947) ART. I, PARAS. 1, 5, 10, AND 18.

POINT V

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 20 YEARS WITH AN 85% PAROLE BAR UNDER NERA. THE SENTENCE SHOULD BE REDUCED.

A brief and amended petition was submitted on behalf of defendant on March 1, 2014. In this brief, defendant raised additional claims

POINT I

THE PETITIONER IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. THE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE SENTENCING PROCEDURE.

POINT II

THE TRIAL COURT ERRED IN FAILING TO CONSIDER MITIGATING FACTORS DESPITE THEM BEING AMPLY BASED IN THE RECORD.

POINT III

ALL POINTS RAISED BY THE PETITIONER IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS BRIEF.

POINT IV

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE THE ISSUES HERE RAISED.

POINT V

THIS PETITION SHOULD NOT BE BARRED FOR PROCEDURAL REASONS.

A. THIS PETITION IS NOT TIME BARRED.

B. THIS PETITION IS NOT PROCEDURALLY BARRED.

The PCR court denied defendant's petition by order dated December 18, 2014. On the same date, Judge Bradley J. Ferencz placed the court's reasons on the record for denying defendant's petition. The judge, who was also the sentencing judge, found that defendant's sentencing arguments should have been argued on direct appeal or were specifically argued by defense counsel and addressed at the time of sentencing. The judge concluded that he properly considered aggravating and mitigating factors and defendant was unable to show "under [Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] that there [was] any miscarriage or lack of appropriate representation by [his] lawyer[;]" and if, by chance, a lack of representation [had] occur[ed], "it surely [did not] affect the outcome in any way[,]" as defendant was facing a life sentence, yet he received a reduced sentence to his benefit through a plea-bargain.

Defendant presents the following issues for our consideration in his appeal.

POINT I

THE TRIAL COURT ERRED IN DENYING PETITIONER'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING BECAUSE PETITIONER MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE BECAUSE COUNSEL FAILED TO SUFFICIENTLY ADVANCE MITIGATING FACTORS ON PETITIONER'S BEHALF.

POINT II

THE PCR COURT ERRED IN DENYING PETITIONER'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING BECAUSE PCR COUNSEL WAS INEFFECTIVE IN FAILING TO SUFFICIENTLY ADVANCE MITIGATING FACTORS ON PETITIONER'S BEHALF.

We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, 466 U.S.at 668, l04 S. Ct. at 2052, 80 L. Ed. 2d at 674, and adopted by our Supreme Court in State v. Fritz, l05 N.J.42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S.at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritztest as to the issues he raised that were argued to the PCR court. SeeState v. Preciose, 129 N.J.451, 462-63 (1992). Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted.

As to defendant's argument regarding PCR counsel's alleged ineffective assistance, we choose to withhold our review because this issue was not previously raised in his PCR petition or argued before the PCR court, and does not involve jurisdictional or public interest concerns. SeeR.3:22-4(b)(2)(C); see also State v. Robinson, 200 N.J.1, 20 (2009); State v. Arthur, 184 N.J.307, 327 (2005); Nieder v. Royal Indem. Ins. Co.,62 N.J.229, 234 (1973).

Affirmed.