STATE OF NEW JERSEY v. KHALID BUTT

NOT FOR PUBLICATION WITHOUT THE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.

KHALID BUTT,

Defendant-Appellant.

____________________________________

April 4, 2014

Argued November 13, 2013 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1399.

A. Harold Kokes argued the cause for appellant.

Mario C. Formica, Special Deputy Attorney General/Acting Chief Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Formica, of counsel and on the brief).

PER CURIAM

Defendant Khalid Butt appeals from the court's order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He argues the following points in his appeal:

POINT I

THE LOWER COURT ERRED IN DENYING PETITIONER'S POST-CONVICTION RELIEF APPLICATION WITHOUT SCHEDULING AN EVIDENTIARY HEARING.

POINT II

SUBPOINT A

PETITIONER'S SENTENCING COUNSEL NEVER REQUESTED CONCURRENT SENTENCES.

SUBPOINT B

PETITIONER'S COUNSEL NEVER REQUESTED LESSER SENTENCES.

POINT III

PETITIONER'S COUNSEL DID NOT SUFFICIENTLY SUPPORT THE REQUEST THAT MITIGATING FACTORS THREE, FIVE, EIGHT AND NINE BE APPLIED FOR A LESSER SENTENCE.

POINT IV

SUBPOINT A

EVEN IF THE COURT FINDS THAT NONE OF THE ABOVE POINTS, INDIVIDUALLY, IS SUFFICIENT PROOF OF A "PRIMA FACIE" CASE THAT REQUIRES THAT PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING, THE CUMULATIVE EFFECT OF SAME ERRORS SHOULD COMPEL THE COURT TO GRANT SAME EVIDENTIARY HEARING.

SUBPOINT B

PETITIONER HAS A MERITORIOUS CLAIM TO BE RAISED ON PETITION FOR POST-CONVICTION RELIEF BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL.

Having considered the arguments raised on appeal, and the applicable legal standards, we affirm.

Defendant stabbed his wife on April 7, 2005. He was subsequently indicted and charged with first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3(a)(1), (2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d).

In a wholly separate incident on July 15, 2005, he stabbed his mother-in-law. He was later indicted and charged with first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3(a)(1), (2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2c:12-1(b)(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree contempt for violation of a domestic violence restraining order, N.J.S.A. 2C:29-9(b).1

Defendant, while incarcerated, was indicted again. This time, he was charged with first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3, because he allegedly solicited another inmate to kill his wife.

Defendant ultimately pled guilty to two counts of second-degree aggravated assault under the first two indictments, pursuant to a plea agreement. The State agreed to recommend that the court sentence defendant to a six year prison term on each count, and that the terms run consecutively. All other charges were to be dismissed, including the charges contained in the third indictment.

At sentencing, defendant's sentencing counsel addressed the court and "submit[ted] applicability of mitigating factors three, five, seven, eight and nine,"2 but raised no further arguments. In accordance with the plea agreement, the State recommended two consecutive six-year sentences and consented to dismissal of the balance of the charges. The sentencing court noted that the agreement arose from a "very carefully negotiated" plea deal, and that "[i]t really took months and months and months for this matter to be put in a position and posture where it could resolve."

The court found aggravating factors under N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), (9) (need for deterrence), and (12) (that defendant committed an offense against a person who he knew, or should have known, was age sixty or older). As to mitigating factors, the court only found factor number seven, N.J.S.A. 2C:44-1(b)(7) (defendant was substantially law-abiding before commission of present offense), as "being very strong up until the first of these incidents." However, the court made a point of noting "[d]efendant's obvious inability to control his rage and anger when he's involved with domestic disputes" as a reason for its concern that defendant could commit the same offenses again.

The court ultimately found the aggravating and mitigating factors to be in equipoise, and reasoned:

[A] strong presumption of incarceration is applicable for any second degree charge, let alone a second degree NERA charge, as both of these are. It has not been overcome by any factors. . . . Midrange now for a second degree . . . is seven or eight years. High range is nine or ten. Low range is five or six. It's certainly fair, under the circumstances, that he be sentenced within the upper part of the low range. In other words, not at the lowest, because the mitigating factors don't outweigh the aggravating factors, but certainly under the midrange. A midrange sentence could've been justified as well if the aggravating factors are in equipoise with the mitigating factors, but this plea agreement took into account that [defendant] was pleading guilty to two matters. A third matter was being dismissed. It was helping to resolve three cases and I certainly will take that into account in sentencing as well, as I always do. So, despite the fact the aggravating and mitigating factors are in equipoise, I find that the upper part of the low range on a second degree is appropriate for both of these.

The court sentenced defendant to two consecutive six year terms in accordance with the plea agreement. Defendant did not appeal his sentence.

Defendant instead filed a PCR petition, seeking to be re-sentenced. Specifically, defendant alleged ineffective assistance of counsel, because his attorney failed to argue for concurrent or lesser sentences, and did not "sufficiently" argue the mitigating factors that counsel "submitted" to the sentencing court.

At the PCR hearing, the court noted that defendant had been "exposed to a strong likelihood of spending decades, if not the rest of his life, in prison," due to the nature of his crimes. However, his sentence was the product of careful and painstaking negotiations between experienced litigators, and . . . was a result which the [sentencing] judge implicitly appreciated." Likewise, the PCR court found defendant's sentence to be "a superb result."

As to the actions (or alleged inaction) of defendant's sentencing counsel, the PCR court noted that,

Yes, [defendant's counsel] could have gone back to the well on sentencing day by making the arguments which the petitioner now says he should have made. On the other hand, [he] could have made the prudential judgment that day that the better course was to leave well enough alone and to keep his over-advocacy to a minimum. It would be my sense that it was the later [sic] course which [he] chose, and, of course, I can't read his mind. In any event, I find that his approach to the sentencing hearing was one which falls well within the wide range of reasonable exercise of professional judgment and discretion that Strickland3 tells me that I have to respect.

Ultimately, the PCR court found that defendant's sentencing counsel's actions likely did not prejudice defendant's case, especially considering the nature and severity of the crimes, and their having occurred on two separate occasions. The court noted that "under Yarbough[4] . . . this is a case that cried out for consecutive sentences." Accordingly, the PCR court denied defendant's petition without an evidentiary hearing. This appeal followed.

Because the PCR court did not conduct an evidentiary hearing, we review the "factual findings and legal conclusions" de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). To establish a prima facie claim of ineffective assistance of counsel, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In such case, we assess defense counsel's actions at sentencing just as we would at any other stage of adjudication. See State v. Hess, 207 N.J. 123, 153 (2011) (citing McConnell v. Rhay, 393 U.S. 2, 4, 89 S. Ct. 32, 34, 21 L. Ed. 2d 2, 4 (1968)).

We are satisfied from our review of the record that defendant failed to meet this burden. A prima facie claim is a showing of reasonable likelihood of success on the claim. Id. at 463. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63. However, mere "bald assertions" of being denied effective assistance of counsel are insufficient; a defendant "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 R. 3:22-10e(2) ("A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative[.]").

To establish a deprivation of one's right to counsel under the standard set forth by the United States Supreme Court, a defendant must show that 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That standard has been adopted by this State, and is also the test for a violation of the New Jersey Constitution, article 1, paragraph 10, under which "a criminal defendant is entitled to the assistance of reasonably competent counsel." State v. Fritz, 105 N.J. 42, 53-58 (1987).

In considering a claim under the first prong, the court must show "extreme deference" in assessing defense counsel's performance as there is "a strong presumption that [it] falls within the wide range of reasonable professional assistance." Id. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (quotations omitted). Defendant contends that his sentencing counsel failed to provide him with the assistance to which defendant was entitled by failing to argue mitigating factors in support of a request for shorter and concurrent terms of imprisonment. R. 3:21-4(b), ("Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney."); State v. Blackmon, 202 N.J. 283, 298 (2010). The fact that there was a plea agreement with a recommended sentence does not prevent "a defense attorney from presenting or arguing mitigating evidence to the sentencing court" as it would deprive "the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors." Hess, supra, 207 N.J. at 153; State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002) ("[A] defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement."). Defendant does not, however, demonstrate how counsel's performance was deficient or that had counsel argued differently at sentencing, the court was likely to impose a shorter (five years versus six) or concurrent term of imprisonment.

First, it is undisputed that defendant's attorney "submitted" various mitigating factors for the court's consideration. Similarly, it is obvious that the court considered the mitigating factors, found one of them to apply, gave it great weight and ultimately found the mitigating and aggravating factors to be in equipoise. And, despite that finding, the court sentenced defendant to the lower range for his second degree crimes. Under these circumstances we agree with the PCR court that sentencing counsel's performance was not deficient, especially because defendant did not offer any evidence as to what more counsel could have done or how it would have changed his sentence.

Second, defendant argues that his sentencing counsel was required to advocate for concurrent terms based on the presence of the mitigating factors his sentencing counsel "submitted" to the court. Even if defendant is correct that sentencing counsel should have made that request, there is nothing in the record to support defendant's belief that he would have received concurrent terms of imprisonment from the sentencing court. In fact, the record indicates otherwise. Without making that showing, defendant failed to establish a prima facie claim under Strickland's second prong.

Under the second prong, a defendant must show there is a "reasonable probability" that but for his counsel's deficient conduct or errors, the proceeding's outcome would have been different. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). In this case, even if his sentencing counsel had argued for more favorable, concurrent terms, it is unlikely that the sentencing court would have imposed a different sentence. Both the sentencing court and the PCR court noted that the plea agreement offered a more favorable outcome than could be expected under the circumstances.

Significantly, it is extremely unlikely that had counsel argued for concurrent terms, the court would have agreed. As stated by the PCR court, the case "cried out for consecutive sentences." See Yarbough, supra, 100 N.J. at 643-45. When considering whether to impose consecutive sentences, Yarbough, supra, requires a sentencing court to consider whether,

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[100 N.J. at 643-44.]

All five of these factors are applicable to defendant's case: his plea agreement was a resolution of three separate offenses, committed on three separate occasions, and against two separate victims. His circumstances thus militated heavily in favor of imposing consecutive sentences and longer custodial terms, and there is no "reasonable probability" that his counsel's allegedly deficient conduct could have changed the outcome of the proceedings.

Because defendant failed to make a prima facie showing of ineffective assistance of counsel, an evidentiary hearing for his petition was not required. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989) (affirming trial court's denial of evidentiary hearing for PCR petition where "resolution of the issues raised by defendant did not require the taking or oral testimony."). Accordingly, the PCR court correctly denied defendant's petition.

Affirmed.

1 These charges are set forth in a superceding indictment. The original indictment for this incident did not include the attempted murder charge.

2 N.J.S.A. 2C:44-1(b)(3), the defendant acted under a strong provocation; (5) the victim of the defendant's conduct induced or facilitated its commission; (7) the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before commission of the present offense; (8) the defendant's conduct was the result of circumstances unlikely to recur; and (9) the character and attitude of the defendant indicate that he is unlikely to commit another offense.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (establishing standard for ineffective assistance of counsel claim).

4 State v. Yarbough, 100 N.J. 627, 643-45 (1984) (establishing general guidelines for imposing concurrent or consecutive sentences for multiple offenses), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).