STATE OF NEW JERSEY v. DIEGO CAMPOVERDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5510-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIEGO CAMPOVERDE, a/k/a DIEGO

CABRERA, a/k/a DIEGO L. CABRERA,

a/k/a DIEGO CAMOVERDE, a/k/a DIEGO

L. CAMPOVERDECABRERA, a/k/a DIEGO L.

CAMPOVERDE,

Defendant-Appellant.

_________________________________________________

May 3, 2013

Submitted February 11, 2013 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-0663.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Diego Campoverde appeals from the Law Division June 16, 2011 order denying his petition for post conviction relief (PCR). We affirm.

The following facts are taken from the record on appeal. On November 15, 2008, defendant was with his girlfriend, Andrea, in his apartment. They argued. Defendant lost his temper, and strangled Andrea with the electrical cord from a curling iron, killing her. Defendant called 911 and said his girlfriend was dead. When police responded they found Andrea's body in defendant's bed. The victim displayed blunt force trauma to her head and had been stabbed twice in the torso with the metal-tipped curling iron.

On March 31, 2009, a Hudson County grand jury returned an indictment charging defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (count one); and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two and three).

On April 16, 2010, defendant pled guilty pursuant to a plea agreement, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), an amended charge under count one. The State agreed to recommend a sentence of no greater than twenty-six years and to dismiss the remaining counts in the indictment.

On June 4, 2010, the court imposed a sentence of twenty years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a five-year period of parole supervision upon discharge and assessed appropriate penalties and assessments. Defendant was advised of his right to appeal and signed a "Notice of Appeal Rights" form indicating he understood those rights.

On November 16, 2010, defendant filed a pro se PCR petition. Defendant's PCR counsel filed an amended petition with a certification from defendant claiming he requested that his plea counsel file a notice of appeal after sentencing. Defendant claims this failure constitutes ineffective assistance of counsel as it deprived him of a "sentencing appeal" in which he would have received a reduced sentence.

On June 16, 2011, the court heard argument on defendant's petition. Defendant's PCR counsel relied on his brief in which he argued that defendant's sentencing counsel was ineffective in failing to file a notice of appeal and in failing to argue, at sentencing, that mitigating factors (4), (7) and (9) applied.

Not only did the PCR court reject defendant's claim that his plea counsel was ineffective, but the court credited counsel for defendant's reduced sentence, noting, "[plea counsel's] arguments on [defendant's] behalf resulted in a sentence of a full six years below that allowable under the terms of the Plea Agreement." The PCR court found no factual support for defendant's claim that plea counsel failed to urge the application of certain mitigating factors and stated it "considered all the statutory mitigating factors presentence and found none to be applicable." The court found defendant's claim that the court failed to apply these factors was irrelevant to the issue of plea counsel's performance.

The court also rejected defendant's claim that counsel's failure to file a timely notice of appeal constituted ineffective assistance, as defendant had failed to demonstrate prejudice. As defendant's basis for challenging the sentence was without merit, any failure to challenge the sentence did not prejudice defendant.

On appeal, defendant raises the following point for our consideration:

POINT ONE

MR. CAMPOVERDE IS ENTITLED [TO] RELIEF ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO FILE A NOTICE OF APPEAL; IN THE ALTERNATIVE HE IS ENTITLED TO AN EVIDENTIARY HEARING; IN THE ALTERNATIVE, HE IS ENTITLED TO A REMAND BECAUSE THE PCR COURT APPLIED TOO HIGH OF A STANDARD OF REVIEW WHEN DENYING HIS CLAIM.

We find insufficient merit in this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2). We add only the following brief comments.

To establish a prima facie case of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Next, a defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). A strong presumption exists that counsel rendered adequate assistance. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Defendant never disputed that he killed his girlfriend. After strangling her, he called 911. When police arrived, he admitted the killing to them. Had he gone to trial, he could have been exposed to a sentence of thirty years to life.

There is no merit to defendant's claim that the court failed to consider mitigating factors or that plea counsel was ineffective. At sentencing, his counsel argued defendant was "a young man who has had minor brushes with the law;" that his crime was "an aberration;" and that since his incarceration "he's endeavored through studying the Bible to complete the courses there - - to try to make peace with God and with himself for - - for what he's done." The State sought a twenty-six year sentence and the court credited plea counsel's arguments on defendant's behalf for the lesser sentence.

We are satisfied that defendant has failed to demonstrate that the assistance provided by his plea counsel was ineffective, either at sentencing or by failing to file a timely notice of appeal.

Affirmed.