STATE OF NEW JERSEY v. LEONARD CARDONA

NOT FOR PUBLICATION WITHOUT THE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.

LEONARD CARDONA, a/k/a

LENNY CARDON,

Defendant-Appellant.

____________________________________

December 27, 2013

Submitted December 11, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4890.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leonard Cardona appeals the Law Division's November 18, 2011 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural background from the record on appeal.

In December 2004, Cardona was indicted for first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count three); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree conspiracy to commit murder, robbery, and/or burglary, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3(a)(1) & (2), N.J.S.A. 2C:15-1, and N.J.S.A. 2C:18-2(a) (count five); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of weapons, contrary to N.J.S.A. 2C:39-5(b) (count seven); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count eight); and fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(4) (count nine).

On August 26, 2005, Cardona appeared in court to accept a plea offer under which count one would be amended to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and the State would recommend a sentence of incarceration for nineteen years,1 subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining charges were to be dismissed. The trial judge rejected the plea because Cardona did not give an adequate factual basis.

On September 9, Cardona again appeared in court, this time to accept a plea offer that called for incarceration for seventeen years, also subject to NERA. He admitted that he forced his way into the home of the victim on November 17, 2003, at which time he and his co-defendant were wearing dark clothing and masks. During the course of the ensuing robbery, the victim was killed. Cardona admitted that he knew his co-defendant was armed and that he knew "that somebody could have been injured." The judge accepted the guilty plea based on that factual basis.

At sentencing on October 21, defense counsel did not argue for a reduced sentence or propose mitigating factors. The judge found two aggravating factors2 and no mitigating factors. He imposed the sentence contemplated by the plea agreement.

Although Cardona did not file a direct appeal, he sought reconsideration of the sentence in a pro se motion. The judge denied the motion on February 28, 2006, finding that the sentence was not excessive, that his "statement of reasons and sentence appropriately accounted for the mitigating and aggravating factors," and that there was "no more room for further balancing." Cardona did not appeal the denial of his motion.

On August 29, 2010, Cardona filed a pro se petition for PCR. Assigned counsel filed an amended petition. Following oral argument, the PCR judge denied relief and dismissed the petition on November 18, 2011. This appeal followed.

II.

Cardona raises the following issues on appeal:

POINT ONE: THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT ADEQUATELY EXPLAIN TO THE DEFENDANT THE "REAL-TIME" CONSEQUENCES OF A NERA SENTENCE.

POINT TWO: THE TRIAL ATTORNEY'S FAILURE TO ADVANCE AN ARGUMENT FOR A LOWER SENTENCE DURING THE SENTENCING HEARING DEPRIVED THE DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

At the initial plea hearing in August 2005, the trial judge gave Cardona an opportunity to go through the plea documents with his attorney, after which he questioned Cardona and established that he understood them. One of the documents reviewed by Cardona specifically asked whether Cardona understood that a violation of the NERA parole could result in his serving the remainder of the parole period "even if [he had] completed serving the term of imprisonment previously imposed." Cardona circled "yes" on the form. The judge also established on the record that Cardona understood that he would serve five years of parole supervision after he was released from prison.

Cardona signed a similar document in connection with the subsequent plea hearing. At the September 9 plea hearing, the judge drew Cardona's attention to the prior plea forms and the new ones, which reflected the reduced sentencing recommendation. He established that defense counsel had read each question to him, that he understood them, and that he had answered the questions truthfully. Defense counsel asked Cardona on the record if he understood he would be subject to five years of NERA parole supervision even if he had served his entire original sentence. Cardona replied "yes."

Based upon the facts just outlined, we find no merit in Cardona's argument concerning the "real-time" consequences of the NERA sentence. Even were we to assume that defense counsel's representation was somehow deficient, we are satisfied that Cardona cannot satisfy the second prong of the Strickland test because of his response to the applicable section of the plea forms and defense counsel asked Cardona if he understood that a violation of the NERA parole could result in further incarceration even if he had finished his underlying sentence. Those are the "real-time" consequences at issue, and Cardona agreed on the record that he understood them. He nevertheless entered the plea.

We also find no merit in Cardona's argument concerning the conduct of his attorney during sentencing. Cardona pled guilty to aggravated manslaughter, which carries a sentencing range between ten and thirty years. N.J.S.A. 2C:11-4(c). By the time his guilty plea was accepted, the State's recommended sentence had been reduced from twenty-two to seventeen years of incarceration. Even assuming defense counsel was deficient in failing to argue for an even lower sentence, State v. Hess, 207 N.J. 123, 149-50 (2011), there is nothing in the record to suggest that, had he done so, the sentence would have been reduced. The judge fully explained his reasons for imposing the sentence. He briefly considered one mitigating factor3 and then explained his reasons for rejecting it. As stated above, in denying the subsequent motion for reconsideration of the sentence, the judge found that there was "no more room for further balancing."4

In summary, we conclude that, even assuming that there was a deficiency with respect to defense counsel's representation, Cardona has failed to present a prima facie case that the result would have been different. Consequently, he was not entitled to an evidentiary hearing, and we affirm.

Affirmed.

1 Cardona had rejected an earlier plea offer that had called for a sentence of twenty-two years.

2 N.J.S.A. 2C:44-1(a)(3) (risk of another offense) and (9) (need for deterrence).

3 N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause significant harm).

4 In Hess, there were significant arguments in support of a reduced sentence. In this case, we find the mitigating arguments suggested by Cardona to be largely unpersuasive.