STATE OF NEW JERSEY v. RAYMONTE LOVE

NOT FOR PUBLICATION WITHOUT THE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.

RAYMONTE LOVE,

Defendant-Appellant.

___________________________________

Submitted May 29, 2013 Decided

Before Judges Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-12-1552.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raymonte Love appeals the Law Division's February 8, 2012 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

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

Following a five-day jury trial in September and October 2008, Love was convicted of first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and third-degree possession of a CDS, contrary to N.J.S.A. 2C:35 10(a)(1).

Sentencing took place on November 14, 2008. The judge merged count two into count one. He found the following aggravating factors: (3) the risk that defendant will commit another offense, (6) defendant's prior criminal record and seriousness of the offenses, and (9) the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6), (9). He also found mitigating factor (11) excessive hardship to defendant or his dependents. N.J.S.A. 2C:44-1(b)(11). The judge determined that the aggravating factors clearly outweighed the mitigating factor and declined to sentence Love in the second-degree range, as defense counsel had requested. The sentence imposed, twelve years of incarceration with a four-year period of parole ineligibility, was at the lower end of the first-degree range of ten to twenty years. Love appealed. We affirmed, and the Supreme Court

denied certification. State v. Love, No. A-4209-08 (App. Div. Aug. 12, 2010), certif. denied, 205 N.J. 81 (2011).

Love filed his PCR petition in February 2011. An amended petition was filed through counsel in September. The judge who had presided at Love's trial and sentencing heard oral argument on January 24, 2012. He entered an order denying relief and dismissing the petition on February 8. The judge attached a written statement of reasons to his order. This appeal followed.

II.

Love raises the following issues on appeal:

POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel was ineffective at sentencing since he failed to forcefully argue in favor of mitigating factors and against aggravating factors.

B. Trial counsel was ineffective at sentencing since he failed to argue that defendant's sentence is far harsher than that imposed upon the co-defendants.

C. Trial counsel was ineffective since he failed to communicate with defendant.

POINT II THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.

POINT III THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION.

A. The warrantless search and seizure [cannot] be justified on the grounds that exigent circumstances existed.

B. The warrantless search and seizure [cannot] be justified on the grounds that the driver had given consent.

C. The warrantless search and seizure [cannot] be justified on the grounds that the items were in plain view.

D. The warrantless search and seizure [cannot] be justified as incident to an arrest.

POINT IV THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT V THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT VI THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-5.

POINT VII THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

"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, 58 (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 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.

Having reviewed Love's arguments in light of the applicable law and the record before us, we find them to be without merit

and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following with respect to certain of Love's arguments.

Love received a sentence at the lower end of the first-degree sentencing range. His attorney argued, albeit unsuccessfully, for a sentence in the second-degree range. He also argued for several mitigating factors not found by the trial judge. The aggravating factors found by the sentencing judge were those frequently found with respect to defendants with prior convictions and were appropriate under the circumstances. Defense counsel was not ineffective.

With respect to the disparity in sentencing between Love and his co-defendants, the PCR judge's written decision correctly pointed out that there were significant differences between their prior histories and Love's, as well as their level of cooperation and his. The sentence of each defendant and the relative disparity in sentences was based on defendants' specific circumstances. The disparity did not rise to a level warranting the reduction of an otherwise legal sentence. See State v. Roach, 146 N.J. 208, 231-34, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

In his Points III through V, Love raises issues that were or could have been raised on direct appeal. We affirmed the

denial of the motion to suppress (Point III) and the motion for a judgment of acquittal (Point IV). State v. Love, supra, 0slip op. at 11-16. Those issues have already been determined.

The issues raised in Point V were not specifically raised on direct appeal, but indirectly relate to denial of the judgment of acquittal. It is a well-settled principle that "post-conviction proceedings are not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979); see also State v. Cacamis, 230 N.J. Super. 1, 5 (App. Div. 1988), certif. denied, 114 N.J. 496 (1989). In any event, those arguments are without merit.

Love was not entitled to an evidentiary hearing because he did not present a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. His remaining contentions do not require comment.

Affirmed.

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