STATE OF NEW JERSEY v. OSCAR FLORES

NOT FOR PUBLICATION WITHOUT THE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.

OSCAR FLORES,

Defendant-Appellant.

_____________________________________

February 25, 2014

Submitted January 27, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Accusation No. 08-04-0160.

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

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Oscar Flores appeals from the May 16, 2012 denial of his application for post-conviction relief (PCR). We affirm.

I.

In 2008, Flores pled guilty to a two-count accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The charges arose from the shooting death of a person with whom Flores had been having a long-standing feud. At the time of the incident, Flores was under the influence of alcoholic beverages.

Pursuant to a plea arrangement, the State recommended an aggregate fifteen-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On August 15, 2008, in conformity with the plea arrangement, Flores was so sentenced.

The sentencing judge was presented with a wealth of positive information about Flores, including a comprehensive nine-page letter memorandum and three-page reply memorandum from defense counsel, a formal Mitigation Report and exhibits prepared by a licensed clinical alcohol and drug counselor, and many letters from individuals favorable to Flores's cause. Sentencing counsel argued, among other things, that Flores's prior law-abiding life and good character militated in favor of an aggregate sentence in the second-degree range, or at worst, at the low end of the first-degree range. The sentencing judge disagreed, orally finding "only . . . one mitigating factor, and that's [m]itigating [f]actor [n]o. 7, and that if anything, weighs equally with [a]ggravating [f]actor [n]o. 9." The judge also found aggravating factor three applied, "because of [Flores's] addiction to alcohol, especially if [he was] in the possession of a gun."1 At the conclusion of the sentencing, the judge stated to Flores, "I want you to understand that I am almost compelled to punish the crime which you have committed and do not deny the fact that otherwise you may be a fine and decent person."

Pursuant to an Excessive Sentence Oral Argument (ESOA) calendar under Rule2:9-11, we affirmed the conviction and sentence, but ordered that the accusation's two charges be merged. State v. Flores, No. A-2622-08 (App. Div. Feb. 8, 2010). An amended judgment of conviction was issued accordingly.

Flores filed a pro se application for PCR on September 13, 2010. In it, Flores argued that because of the merger, he was entitled to a lesser sentence than originally imposed. When PCR counsel was appointed, Flores raised the issue of ineffective assistance of sentencing and appellate counsel with respect to his sentence. Sentencing counsel was criticized for failing to argue additional mitigating factors besides mitigating factor seven, and was further maligned for "fail[ing] to call a single . . . individual to speak at the sentencing" who would have provided "crucial mitigating information." Consequently, appellate counsel was accused of failing to raise sentencing counsel's putative errors as grounds for a direct appeal. In support of his application, Flores appended information from four persons who either provided letters to the sentencing judge in 2008 (or who would have if asked), or who would have orally addressed the sentencing judge if offered by sentencing counsel.

April 20, 2012, Judge Ann R. Bartlett conducted a hearing, but not an evidential hearing, to consider Flores's PCR application. Flores's PCR counsel stated, "the only thing that my client is requesting is a new sentencing hearing. He's not seeking to vacate the plea." PCR counsel further argued,

[Sentencing] counsel did put forth an effort, what our argument is, is in this matter, is essentially on the record there were nine witnesses who were present in the courtroom. There was an expert a sentencing expert as well as family members and friends who were there who trial counsel had actually noted on the record were very important in terms of putting together a complete picture and to make the most forceful and effective argument for the [d]efendant at sentencing, my client.

And he never unbelievably asked the Court to hear these people even though they were all sitting there in the courtroom. And I believe it was his obligation to ask the Court to hear these people, because of course the reason we have trials is that it's more effective to hear people speaking than it is to get letters. And I do acknowledge that there were several letters that were submitted to the Court.

But it's our argument that he should have at least asked the Court to allow these people to speak at sentencing. And if they would have spoken, I believe that there was a good chance that he would have gotten less than the plea which was a 15-year term with no early release.

Following the hearing, Judge Bartlett issued an undated ten-page written opinion denying post-conviction relief. First, the judge declared that Flores's application vis- -vis sentencing counsel was "procedurally barred by R.3:22-4(a)" because, "In addition to the fact that [d]efendant's arguments could have reasonably been raised on appeal, [d]efendant fails to show that his sentence amounts to a fundamental injustice." Second, the procedurally-appropriate claim of ineffective assistance of appellate counsel was meritless because Flores failed to demonstrate either the prejudice or performance factors required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); and their progeny. Judge Bartlett explained,

[H]ere the mitigating submissions and argument were not only made below, but the sentencing judge addressed each factor proposed by [sentencing] counsel and gave sound reasons for rejecting all but one of those factors. That is the record [appellate counsel] had to work with.

. . . .

In this motion, [d]efendant has not shown that his corrected sentence, after the merger . . . was illegal or amounted to an abuse of discretion. Nor has he demonstrated a basis on which [appellate counsel] could plausibly have made such an argument.

This appeal followed.

II.

Flores's present position differs markedly from that in the Law Division. He has abandoned any claim of deficiency on the part of sentencing counsel,2 and now targets only appellate counsel as being ineffective. Specifically, Flores argues,

In the present case, it is submitted appellate counsel did not adequately represent the defendant when he failed to present any argument whatsoever maintaining the trial court had erred in ignoring all but one of the mitigating factors proffered by trial counsel which were supported by the record, and further failed to refute the trial court's conclusion that [aggravating factor three] was a relevant aggravating factor.

We have thoroughly reviewed the record, focusing particularly upon the ESOA transcript and all of the sentencing materials, and conclude that Flores's contentions are unpersuasive.

We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland, and subsequently adopted by our Supreme Court in Fritz. See State v. McDonald, 211 N.J. 4, 29-30 (2012). The Strickland/Fritz paradigm not only applies to trial counsel, but also "governs claims that appellate counsel rendered ineffective assistance." State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

First, Flores must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show 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. With respect to both factors of the Strickland/Fritz test, a defendant asserting ineffective assistance of counsel bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Additionally, the Court has counseled that

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350 (2012).]

A sentencing court should consider all valid mitigating factors. State v. Blackmon, 202 N.J. 283 (2010); see also State v. Dalziel, 182 N.J. 494, 504 (2005) ("where mitigating factors are amply based in the record before the sentencing judge, they must be found"). "[T]he failure [of defense counsel] to present and argue the mitigating evidence can only be explained as attorney dereliction" and in some cases can rise to the level of ineffective assistance of counsel. State v. Hess, 207 N.J. 123, 154 (2011) (finding on a PCR appeal that the defendant did not receive effective assistance of counsel at sentencing due to his attorney's failure to raise mitigating factors).

Here, the record presents a cursory ESOA oral presentation by appellate counsel with respect to the sentencing calculus employed by the sentencing judge. Most of appellate counsel's comments were directed, successfully we might add, toward the merger issue. Little was said about the welter of materials reviewed by the Law Division, and how they should have affected the balance of aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and -1(b).

However, the ESOA panel indubitably was provided with the background sentencing materials, including everything that Flores presented in the Law Division, and to us. In light of that, the ESOA panel's order concluded:

[H]aving considered the record and argument of counsel, and it appearing that the issues on appeal relate solely to the sentence imposed, we are satisfied that the disposition is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Natale, 184 N.J. 458 (2005); State v. O Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).

Our independent review, see Rule 2:10-5, confirms that even if appellate counsel had pressed the issues now being asserted by Flores, the result would have been the same. Thus, Flores cannot satisfy the prejudice factor of Strickland/Fritz.

The fact of the matter is that the sentencing judge did not mistakenly exercise his discretion and appellate counsel was not deficient in his effort to ameliorate the sentence. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").

1 At sentencing, the judge never referred to aggravating factor two. However, he may have misspoke when he said, "This case comes awfully close to finding [m]itigating [f]actor [n]o. 2, although aggravated manslaughter may encompass that kind of banal and hostile activity." Even if the judge meant to say, "[a]ggravating [f]actor [n]o. 2," it appears that the judge rejected that aggravating factor. If so, the inclusion of aggravating factor two in the judgment of conviction would appear to be a mistake. State v. Murray, 338 N.J. Super. 80, 91 (App. Div.) (holding that the sentencing transcript controls when an aggravating factor mentioned in the judgment of conviction was not mentioned at sentencing), certif. denied, 169 N.J. 608 (2001).

2 In his appellate brief, Flores states, "It is well established an ineffective assistance of trial counsel claim can apply where a defendant received inadequate legal representation at sentencing. See State v. Hess, 207 N.J. 123, 145-147 (2011). Such a situation existed in the present case, not at the trial level, but rather at the appellate level."