STATE OF NEW JERSEY v. BRANDON SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON SMITH,

Defendant-Appellant.

________________________________________________________________

January 3, 2014

 

Submitted December 4, 2013 Decided

Before Judges Sapp-Peterson and Maven.

 

On appeal from the Superior Court New Jersey, Law Division, Camden County, Indictment No. 04-04-1644 and Accusation No. 05-07-2785.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

 

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

 

PER CURIAM

Defendant Brandon Smith appeals from a November 4, 2011 order denying his petition for post-conviction relief (PCR).

We affirm.

After entering into a plea agreement for first-degree robbery, N.J.S.A. 2C:15-1, and first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, the court, on August 12, 2005, imposed a twenty-five year term of imprisonment on the aggravated manslaughter charge, eighty-five percent of which would be served pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a concurrent ten-year term of imprisonment on the robbery charge, with five years of parole supervision. Consistent with the plea agreement, the remaining counts of the indictment were dismissed.

Defendant did not file a direct appeal. He filed a timely pro se PCR petition in which he alleged ineffective assistance of trial counsel for failing to file pre-trial motions and for failing to argue for consideration of certain mitigating factors at sentencing. PCR counsel filed a supplemental brief adding trial counsel's failure to consult with defendant until the day of the plea.

At oral argument, PCR counsel specifically addressed the sentencing issue, arguing that trial counsel should have raised mitigating factor six, N.J.S.A. 2C:44-1(b)(6), because defendant agreed to pay restitution, and mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), in light of defendant's agreement to fully cooperate in the prosecutions of the co-defendants. Counsel ultimately argued that as a result of trial counsel's failure to raise the mitigating factors, defendant received an excessive sentence.

On November 4, 2011, Judge Louise D. Donaldson, who had also presided over defendant's plea hearing and sentencing, issued an oral decision denying the PCR petition. Judge Donaldson considered defendant's contentions on the merits and determined that an evidentiary hearing was not required.

Regarding defendant's claim that trial counsel failed to file certain pre-trial motions, the judge stated that

defendant failed to indicate which evidence should have been suppressed and the reasons for suppressing such evidence. Thus, defendant's claim amounts to a [bald] assertion, which, according to Strickland,1 is insufficient to establish a prima facie case of ineffective assistance of counsel.

 

Further, no physical evidence was seized from the defendant in either case and all testimonial evidence consisted of voluntary witness statements to the police. No legal argument has been alleged which would provide the basis for a motion to suppress evidence. Therefore, defendant's first claim of ineffective assistance of counsel fails both prongs of the Strickland test.

 

In his petition, defendant again does not explain his position or indicate anything in the record to support his argument that trial counsel erred by not filing a motion to dismiss the indictment. Thus, defendant's ineffective assistance claim on this point also amounts to a [bald] assertion which fails the Strickland test.

 

The judge similarly found trial counsel's failure to obtain a bill of particulars insufficient to satisfy both prongs of the Strickland test.

Regarding the claim that trial counsel failed to raise mitigating factors six and twelve, which would have resulted in a sentence for a crime of a lesser degree, the court found trial counsel's conduct was not ineffective. The court rejected defendant's reliance on State v. Natale, 184 N.J. 458 (2005), finding that defendant did not qualify for a lower sentence because "[t]he sentencing court found no mitigating factors to apply and the severity of the defendant's crimes strongly mitigated against lowering his sentence in the interest of justice."

On the particular factors, the judge noted that trial counsel had in fact argued for mitigating factor six. Although trial counsel did not explicitly address mitigating factor twelve, the judge found counsel's failure to do so did not reflect poor professional judgment. The court further reasoned that

defendant's cooperation with the State [was] part of the consideration and plea bargain, it was a concession the State sought in return for dismissing counts two through five . . . . Had the trial counsel asked the Court to consider factor [twelve], he would have been asking the Court to double count that factor.

 

The court concluded that defendant's claim regarding the mitigating factors failed prong one of the Strickland test. The judge reasoned that because the "gravity and nature of [the] crimes [were] so severe . . . defendant would not have been entitled to a sentence of one degree lower, even had the prior attorney argued mitigating factors six and [twelve]." As such, the court found defendant's claim failed prong two of the Strickland test.

Finally, the court concluded trial counsel's failure to meet with defendant until the day the plea was entered did not satisfy the Strickland test. The judge stated

the court record reveals that trial counsel did adequately communicate with defendant. During the defendant's plea [hearing], the Court specifically asked defendant have you had the opportunity to discuss your case with your attorney . . . to which defendant replied yes. The Court also asked defendant if he had the chance to ask counsel any questions . . . about the plea[.] Again, the defendant responded yes.

 

The court thereafter denied defendant's PCR petition.

This appeal followed. Defendant raises the following point:

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING AS THERE WAS PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL PRESENTED.

 

We have considered defendant's contention in light of the record and applicable legal principles, and are satisfied defendant's claim is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Donaldson in her thorough oral decision. We add only the following brief comments.

In order for defendant to obtain relief based on ineffective assistance of counsel grounds, he is obliged to show not only the particular manner in which his counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. We are satisfied, as the PCR judge found, plea counsel was not ineffective.

We are persuaded that the alleged deficiencies here clearly fail to meet both the performance and the prejudice prongs of the Strickland test.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).