STATE OF NEW JERSEY v. WENDELL T. JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2979-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WENDELL T. JONES,1

Defendant-Appellant.

________________________________________________________________

May 30, 2014

Submitted March 26, 2014 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-10-1501.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wendell T. Jones appeals from the order of the trial court dated August 30, 2012, denying his petition for post-conviction relief (PCR) after oral argument, without an evidentiary hearing. Seeking resentencing, defendant argues counsel failed to argue four applicable mitigating factors. Alternatively, defendant argues the PCR court inappropriately denied his request for an evidentiary hearing. For the reasons that follow, we affirm.

The facts in the case are not disputed. Defendant, along with co-defendant Alfonzo Nicholas and two females, participated in a pre-arranged drug transaction. Nicholas approached the driver's side of the victim's car, while defendant went to the passenger's side of the car. Both men were armed. As an argument ensued over the quality of the substances being purchased, Nicholas shot and killed the victim.

Pursuant to a negotiated plea agreement, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The court imposed a fifteen-year term of imprisonment, eighty-five percent of which would be served pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant did not file a direct appeal challenging his guilty plea or his sentence. However, he filed a timely pro se PCR petition on September 1, 2011, in which he alleged ineffective assistance of trial counsel for failing to argue for consideration of certain mitigating factors at sentencing, and for failing to challenge the sentence on direct appeal. PCR counsel filed a supplemental brief in support of the petition on March 16, 2012.

In his pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial counsel, which resulted in an excessive sentence, for failing to argue the applicability of mitigating factors seven (no history of prior delinquency or criminal activity), N.J.S.A. 2C:44-1(b)(7); eight (conduct was the result of circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(8); nine (character and attitude of the defendant indicate that he is unlikely to commit another offense), N.J.S.A. 2C:44-1(b)(9); and eleven (imprisonment of the defendant would entail excessive hardship to himself or his dependents), N.J.S.A. 2C:44-1(b)(11).

On August 17, 2012, Judge James W. Palmer, Jr. heard oral argument on the petition and later issued a written opinion in which he addressed and rejected each of defendant's claims as without substantive merit. The judge explained defendant failed to establish a prima facie case of ineffective assistance of counsel with respect to his guilty plea and sentence under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); see also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (recognizing that to establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).

The judge determined defendant knowingly, voluntarily, and intelligently entered into a plea agreement to which he signed his name on the plea form, and from which defendant "was fully aware [of] what the outcome of his sentencing would have been." The judge also found trial counsel's performance at sentencing was not deficient. Lastly, the judge determined an evidentiary hearing was not required. The court thereafter denied defendant's PCR petition. This appeal followed.

Defendant raises the following arguments:

I. THE DEFENDANT'S TRIAL ATTORNEYS WERE CONSTITUTIONALLY INEFFECTIVE WHERE IT APPEARS THE DEFENDANT DID NOT FULLY UNDERSTAND A SPECIAL CONDITION MANDATED BY STATUTE WHICH WOULD AFFECT HIS FREEDOM FOR THE REST OF HIS LIFE AND NO MITIGATING FACTORS WERE PRESENTED TO THE TRIAL COURT FOR CONSIDERATION.

II. THIS COURT SHOULD REMAND FOR RESENTENCING WHERE THE TRIAL COURT DID NOT THOUGHTFULLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.

III. THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT PERFECT THE DEFENDANT'S DIRECT APPEAL IN SPITE OF KNOWLEDGE THAT THE DEFENDANT WAS INTERESTED IN APPEALING.

In his supplemental brief, defendant raises these additional claims:

I. THE DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS NOT PROCEDURALLY BARRED WHERE IT COULD NOT HAVE BEEN RAISED ON DIRECT APPEAL.

II. THE DEFENDANT ASSERTED A PRIMA FACIE PREJUDICE CLAIM WHERE HE SHOWED THAT HIS TRIAL ATTORNEY SHOULD HAVE URGED, BUT DID NOT, THE TRIAL COURT TO CONSIDER SEVERAL MITIGATING FACTORS WHICH MAY HAVE REDUCED THE TERM OF HIS SENTENCE AND THAT A VERY REAL POSSIBILITY OF SERVING MORE PRISON TIME THAN WAS EXPLAINED TO HIM EXISTED.

III. THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING.

We have considered defendant's contentions in light of the record and applicable legal principles, and are satisfied defendant's claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Under the first prong of the Strickland test, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (internal citation and quotation marks omitted). In the context of a guilty plea, defendant must demonstrate that he would not have pled guilty but for his counsel's defective representation. Id. at 139 (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

Defendant has not made a prima facie case showing that his counsel was ineffective or deficient. Defendant has not supplied any certifications or affidavits containing factual assertions supportive of his claims. First, the plea hearing was thorough as to defendant's knowing and voluntary acknowledgement of all aspects of the negotiated plea and sentence. Defendant confirmed he filled out the plea forms with counsel's assistance, understood the questions, and affirmed that the contents of those forms were truthful. He has submitted no competent evidence explaining (1) why he told the judge that he understood the plea agreement and that he would be sentenced under NERA, (2) why he testified that he understood the plea forms that detailed the recommended sentence and the estimated length of the parole disqualifier to which he would be subject, and (3) why he testified he was satisfied with his attorneys' representations. See DiFrisco, supra, 137 N.J. at 457; Cummings, supra, 321 N.J. Super. at 170.

Next, the claims raised by defendant pertain exclusively to his sentence. Although Rule 3:22-2(c) precludes defendant from raising an excessive sentence argument in a PCR petition, State v. Clark, 65 N.J. 426, 436-37 (1974), he may raise ineffective assistance of sentencing counsel. State v. Hess, 207 N.J. 123, 129 (2011). We will review the claims in that light.

In this case, defendant contends he is entitled to consideration of mitigating factors eight and nine because the court found that he was not "really that bad of a guy;" mitigating factor seven because the court found his prior criminal history to be "very, very meager;" and mitigating factor eleven because he lives with his mother who suffers from asthma. The record clearly demonstrates the sentencing judge considered several of the mitigating factors now raised by defendant as applying albeit, without reciting the statutory reference. The judge acknowledged defendant's limited criminal history, and reflected on defendant's character stating defendant did not appear to have "the makings of a murderer or killer." In that regard, the judge clearly had defendant in mind when considering the essence of mitigating factors eight and nine, as he remarked on the difficulty of predicting defendant's future criminal conduct and the reoccurrence of drug transactions like the instant incident. The judge nevertheless gave significant weight to the need to deter2 defendant and others from committing the same offense, as evidenced by his commentary on the proliferation of guns, drugs, and violence in society, and its effects on seemingly good young men like defendant.

Notwithstanding defense counsel's failure to bring forth these mitigating factors, we are satisfied the judge understood his obligation "to identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). We conclude the sentencing judge did not mistakenly exercise his discretion in his effort to ameliorate the sentence. As Judge Palmer noted, full consideration of all facts relevant to defendant's circumstances impacting sentencing were properly and fully considered.

In this light, we conclude the denial of PCR was proper. We are persuaded the alleged deficiencies here clearly fail to meet both the performance and the prejudice prongs of the Strickland test. We agree with the PCR judge who found that "even if these mitigating factors were raised . . . they would not have been found [applicable] based on the record set forth at the trial level. Hence, the aggravating factors would still outweigh the mitigating factors on a quantitative as well as qualitative basis." Thus, even if presented by counsel, the mitigating factors would not have altered the outcome of the sentencing proceedings. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel."). Since defendant failed to present prima facie evidence of ineffective assistance of counsel, no evidentiary hearing was required. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.

1 The appellate record misspells defendant's first name. We corrected this error in our opinion to be consistent with the Judgment of Conviction.

2 N.J.S.A. 2C:44-1(a)(9).