STATE OF NEW JERSEY v. RAJKEITH H. REED

NOT FOR PUBLICATION WITHOUT THE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.

RAJKEITH H. REED,

Defendant-Appellant.

______________________________

March 3, 2014

June 3, 2014

Resubmitted May 27, 2014 - Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1223.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

We consider again defendant's appeal from the trial court's 2011 order denying post-conviction relief. In our March 2014 decision, we remanded, pursuant to State v. Parker, 212 N.J.269 (2012), and State v. Mayron, 344 N.J. Super.382, 387 (App. Div. 2001), for the trial court to conduct oral argument, or provide reasons why oral argument was unnecessary. State v. Reed, No. 2970-11 (App. Div. March 3, 2014). Judge Gwendolyn Blue, who did not decide the petition in 2011, heard oral argument on the petition on April 14, 2014. After doing so, as well as hearing from defendant, Judge Blue determined that argument did not alter the court's previous analysis of the petition in 2011. We have subsequently received supplemental briefs from the parties. With the record now amplified, we affirm the trial court's 2011 order denying PCR.

Defendant argues that his trial attorney was ineffective because (1) he coerced defendant to enter a plea and withdraw a pending suppression motion by overstating his sentencing exposure; and (2) he failed to argue mitigating factors at sentencing, which would have resulted in a sentence in the second-degree range.1

We have considered the arguments defendant has presented, and we find they lack sufficient merit to warrant extended discussion in a written opinion. Rule2:11-3(e)(2). We limit ourselves to the following comments.

In accord with defendant's plea agreement, he received a sentence of ten years, with a parole ineligibility term of five years, upon a conviction of first-degree possession of cocaine (seven ounces) with intent to distribute, N.J.S.A.2C:35-5(a)(1), (b)(1). Also, in accord with the plea agreement, defendant withdrew a pending suppression motion, and accepted sole responsibility for the seven ounces of cocaine; the State dismissed charges against defendant's two co-defendants, including Jennifer Torres, who was the mother of his child and with whom he lived. The State also dismissed the remaining counts of the indictment against defendant, which pertained to drug offenses in two municipalities. Defendant had been indicted for possession, possession with intent to distribute, and doing so in a school zone in Cherry Hill, all in the third-degree, N.J.S.A.2C:35-10(a)(1), -5(a)(1), -5(b)(3), and -7; and third-degree possession, first-degree possession with intent to distribute, and third-degree possession with intent to distribute in a school zone in Pennsauken, N.J.S.A.2C:35-10(a)(1), -5(a)(1), 5(b)(1), and -7.

Before the motion to suppress was filed, the State had offered defendant a plea agreement under which the State would recommend a nine-year term, with a thirty-nine month parole bar. Defendant rejected the offer and pursued his suppression motion. Defendant challenged his arrest and the warrantless search of his vehicle in Cherry Hill on August 1, 2008. Based on that arrest and seizure of a relatively small amount of cocaine, police ultimately obtained a warrant to search defendant and Torres's residence in Pennsauken, where the seven ounces of cocaine were seized the same day. According to his trial counsel, on the day the evidentiary hearing on the suppression motion was about to commence, defendant inquired about the possibility of a plea agreement that would result in the dismissal of charges against his co-defendants. That led to the State's offer that defendant accepted.

To establish ineffective assistance of counsel, defendant must demonstrate (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). He has failed to do so.

Defendant argues in his supplemental brief that his decision to withdraw the suppression motion "was made only after trial counsel pressured defendant to plead guilty by misleading him about his possible sentencing exposure" specifically, that "he could receive a sentence of up to 25 years if convicted of first-degree possession of cocaine." This allegation finds no support in defendant's sworn pro se petition or any other competent evidence. Defendant's certification makes no claim that he was intent on going to trial. Rather, he complained that counsel was ineffective in failing to pursue pre-trial motions that allegedly would have yielded a more favorable plea offer. In any event, an aggregate sentence at the top of the third-degree range for the Cherry Hill offenses, consecutive to an aggregate sentence at the top of the first-degree range for the Pennsauken offenses, could have yielded a twenty-five year sentence.

As for the claim of ineffective assistance at sentencing, we recognize that defense counsel failed to present any argument in support of mitigating factors. SeeState v. Hess, 207 N.J.123, 154 (2011) ("We find that the failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel even within the confines of the plea agreement."). It is unclear why defense counsel failed to do so.2 However, we find no merit to defendant's claim that had counsel so argued, he would have received a downgraded sentence.

We agree with Judge Blue that the hardship that defendant's young child would suffer as a result of defendant's incarceration, although genuine, was neither exceptional nor "excessive," so as to trigger application of N.J.S.A.2C:44-1(b)(11). Defendant's claim that he was immature, and subject to the influence of more culpable co-defendants, apparently an effort to apply N.J.S.A.2C:44-1(b)(13), was unpersuasive for two reasons. First, defendant was almost twenty-six years old when he committed the crimes, and had two prior adult convictions. Second, in his plea allocution, defendant exonerated his co-defendants and accepted full responsibility for the drugs.

Finally, based on the record before us, trial counsel had no basis to seek, nor did the trial court have any basis to impose, a downgraded sentence under N.J.S.A.2C:44-1(f)(2). SeeState v. Megargel, 143 N.J.484, 501-02 (1996) (stating that a defendant must provide "compelling" reasons warranting a downgrade); State v. Lake, 408 N.J. Super.313, 328-29 (App. Div. 2009) (reversing trial court's imposition of downgraded term).

Affirmed.

1 In his initial, pre-remand brief, defendant argued that the trial court erred in denying oral argument; and that defendant was denied effective assistance of post-conviction counsel by failing to present competent evidence to demonstrate the viability of the suppression motion, and to support mitigating factors and challenge aggravating factors. We addressed the latter two points in our initial opinion and shall do so again here.

2 We note that defendant initially failed to appear for sentencing because he remained out of the country on vacation. Allegedly, he lost his passport, which delayed his return. A warrant was issued for his arrest and he voluntarily surrendered upon his return. The State apparently did not seek any sanction against defendant for his non-appearance.