STATE OF NEW JERSEY v. WILLIAM BURDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6215-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM BURDEN,

Defendant-Appellant.

___________________________________

January 18, 2012

Submitted October 5, 2011 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment No.

03-12-1137.

Joseph E. Krakora, Public Defender, attorney

for appellant (Lee March Grayson, Designated

Counsel, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent

(Marianne V. Rogers, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant William Burden appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.

On October 3, 2005, defendant pled guilty to third degree uttering a writing he knows to be false, N.J.S.A. 2C:21-1(a)(3) under Indictment 03-12-1137, and third degree burglary, N.J.S.A. 2C:18-2 under Indictment 03-12-1136. Pursuant to the plea agreement, the sentences imposed for these two offenses were to run concurrently. Aside from this, the court had discretion to sentence defendant to custodial terms within the range provided by the Criminal Code for these offenses. Defendant agreed to waive his right to appeal, and the State reserved the right to seek an extended custodial term.

The court sentenced defendant on December 9, 2005, to an extended term of ten years, with five years of parole ineligibility.1 The court found defendant eligible for an extendedterm basedon defendant's criminal history which included sevenprior indictable convictions. Defendantappealed thesentence as excessive through the summary process available underRule 2:9-11. We affirmedthe sentenceby orderdated April25, 2007. State v.Burden, No.A-0510-06 (App.Div. April25, 2007).

On December 18, 2009, defendant filed this PCR petition pro se alleging ineffective assistance of counsel. The court thereafter assigned counsel to prosecute the petition. When the petition was heard by the trial court, PCR counsel argued that running the sentence imposed by the court in this case consecutive to the thirty-year term he was serving at the time from charges brought in Salem County "was a manifest injustice which serves no useful purpose."

PCR counsel further stated that the attorney who represented defendant in the plea negotiations and at the sentencing hearing "did not do an adequate job in representing him in regard that -- at least negotiating, . . . a stronger argument for concurrent terms versus consecutive terms." Although PCR counsel acknowledged that the reasonableness of the sentence "was already decided by the Appellate Division," defendant was raising this issue again in the context of the PCR petition because his trial counsel "performed an inadequate job [] negotiating on his behalf."

The PCR court denied defendant's petition without an evidentiary hearing, finding that defendant had not established a prima facie case of ineffective assistance of counsel. The PCR judge reviewed the transcript of the plea hearing and noted that the court advised defendant directly that the sentence imposed for the crimes of burglary and uttering a false or forged instrument could run consecutive to the thirty-year custodial term defendant was serving at the time.

The PCR judge then concluded:

So it was clear that he was aware at the time the Plea was entered that the sentences to be imposed under the terms of the Plea Agreement he entered into in Cumberland County could be consecutive to the sentence that was imposed in Salem County. And he was also aware of his sentencing exposure, as much as 10 years in prison and as much as five years without parole.

The PCR judge rejected defendant's argument attacking the reasonableness of the sentence because that precise issue was addressed and rejected by this court in defendant's direct appeal. Against this record, defendant now appeals raising the following arguments.

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS APPELLATE COUNSEL IN THE DIRECT APPEAL AND POST-CONVICTION RELIEF ("PCR") ATTORNEY IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS. (Partially Raised Below)

POINT II

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY AT THE PLEA AND SENTENCING HEARINGS IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT III

THE GUILTY PLEAS MUST BE VACATED BECAUSE THE DEFENDANT DID NOT ENTER INTO THE PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AND WAS NOT INFORMED ABOUT OR AWARE OF THE PENAL AND COLLATERAL CONSEQUENCES OF THE PLEA AGREEMENT PRIOR TO THE PLEA HEARING.

POINT IV

THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT V

THE SENTENCE IMPOSED WAS ILLEGAL AND SHOULD BE VACATED. (Partially Raised Below)

a. THE PIERCE ISSUES REQUIRE REVERSAL OF THE SENTENCE IMPOSED.

b. THE SENTENCING COURT ENGAGED IN IMPERMISSIBLE DOUBLE COUNTING.

c. REQUIRING THE DEFENDANT TO SERVE THE SENTENCES INPOSED [SIC] IN THIS CASE CONSECUTIVE TO HIS THIRTY (30) YEAR AGGREGATE TERM WAS UNREASONABLE AND RESULTED IN MANIFEST INJUSTICE.

POINT VI

REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL, APPELLATE AND PCR COUNSEL.

Defendant's arguments as reflected in Points I through IV and VI lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm as to these arguments substantially for the reasons expressed by the PCR judge in an oral opinion delivered from the bench on January 8, 2010.

In Point V, defendant argues, for the first time, that the sentence imposed by the trial court was illegal because it did not follow our Supreme Court's mandate in State v. Pierce, 188 N.J. 155, 169 (2006). This argument is without merit. Defendant's extensive criminal history, which included seven indictable convictions, supported both the imposition of the maximum ordinary sentence for a third degree offense, and the imposition of an extended term as a persistent offender under N.J.S.A. 2C:44-3(a).

Given his criminal background, the sentencing court correctly placed a heavy emphasis on aggravating factor N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense. The court also correctly gave strong weight to aggravating factor N.J.S.A. 2C:44-1(a)(6), defendant's extensive criminal record. Finally, the applicability and suitability of N.J.S.A. 2C:44-1(a)(9), the deterrent factor, is self-evident. Based on this, the sentence imposed by the court was both legal and in compliance with Pierce.

Pursuant to our holding today, once the court finds that those statutory eligibility requirements are met, the maximum sentence to which defendant may be subject, for purposes of Apprendi,2 is the top of the extended-term range. Stated differently, the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. By recognizing that the top of the extended-term range is the "top" applicable to a persistent offender, we do not make mandatory a defendant's sentencing within the enhanced range. Rather, we merely acknowledge that the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range. Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found. On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the entire range.

[Pierce, supra, 188 N.J. at 169-70.]

In this light, we discern no basis to conclude the trial court abused its discretionary authority in imposing the extended term, maximum sentence permitted under the Code. The sentence was both legal and consistent with the plea agreement.

1 At the time the court imposed this sentence, defendant was serving a thirty-year term for an unrelated charge originating in Salem County.

2 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).