STATE OF NEW JERSEY v. CRISTIANO DESOUZA PESSOA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-33520-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRISTIANO DESOUZA PESSOA,

a/k/a LEONARDO SIQUEIRA,

Defendant-Appellant.

_____________________________

May 22, 2014

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 10-06-1204.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cristiano Desouza Pessoa appeals from the denial of his first petition for post-conviction relief (PCR), without an evidentiary hearing, in which he alleged ineffective assistance of trial counsel. We affirm.

On June 29, 2010, in an accusation, defendant was charged with five counts of second-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one through five), and third-degree escape, N.J.S.A. 2C:29-5(a) (count six). He entered into a negotiated plea agreement in which he agreed to plead guilty to all six counts of the accusation, to make restitution in the amount of $15,677.86, and to reserve the right to argue for a lesser sentence. In exchange, the State agreed to recommend concurrent ten-year sentences on the robbery charges with an eighty-five-percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive three-year sentence on the escape charge. The court sentenced defendant in accordance with the plea agreement. Defendant did not file a direct appeal.

Defendant filed a pro se PCR petition and, after being assigned counsel, a brief in support of his petition was filed on his behalf. Defendant raised the ineffectiveness of his trial counsel as a basis for relief. Specifically, defendant claimed defense counsel was ineffective because counsel failed to argue any mitigating factors at sentencing, failed to request a hearing to determine his ability to make restitution, and failed to file a notice of appeal addressing the trial court's omission of mitigating factors and his ability to make restitution. Defendant urged the cumulative effect of these errors warranted PCR.

In a written opinion, Judge John T. Mullaney, Jr., denied the petition. The present appeal followed.

On appeal, defendant raises the following arguments:

POINT ONE

RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-2.

POINT TWO

RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4.

POINT THREE

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm substantially for the reasons stated by Judge Mullaney in his December 18, 2012 written opinion. We add the following comments.

We agree, as Judge Mullaney determined, that defendant's challenge to the sentencing court's failure to consider additional mitigating factors, which may have reduced his sentence, effectively was a claim of imposition of an excessive sentence, which should have been raised on direct appeal. R. 3:22-2(c). Rule 3:22-2(c) limits challenges to sentences in PCR proceedings to those sentences which exceed the penalties authorized by statute or are illegal sentences. State v. Acevedo, 205 N.J. 40, 45-46 (2011) (holding "mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for [PCR] and can only be raised on direct appeal from the conviction") (internal quotation marks and citations omitted). Moreover, as Judge Mullaney observed, the trial counsel did present mitigating factors to the trial court for consideration. Likewise, as for defendant's claim the trial court erred in failing to conduct a restitution hearing to determine his ability to pay, we agree, as Judge Mullaney found, this claim should also have been advanced in a direct appeal, since the trial court's failure to do so was wholly contained in the record.

Finally, addressing the ineffective assistance of counsel claim, the test for ineffective assistance of counsel was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) first that counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In making that determination, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. State v. Parker, 212 N.J. 269, 279 (2012). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Id. at 280. Thus, both prongs of the Strickland/Fritz test must be satisfied before PCR may be granted. Ibid.

Judge Mullaney applied the correct standard of review and found that even assuming trial counsel was ineffective in failing to request a restitution hearing, the amount of restitution ordered would have been the same had a hearing been conducted:

There is no evidence to support that the amount was in dispute or that petitioner did not have the ability to pay. The restitution amount accurately reflected amounts taken during the robberies. Also, the court could easily have concluded that petitioner was able to pay the amount of restitution agreed to by the State and petitioner based on petitioner's future earning power. Petitioner is at the young age of 26, has prior technical work experience as a hardwood floor installer, and has the potential to obtain incarceration work.

We are in complete agreement with these findings. Further, as Judge Mullaney noted, defendant failed to submit any evidence to support his contention that he in fact requested his trial counsel to file an appeal on his behalf and, in the absence of such evidence, this claim was merely a bald assertion, which was insufficient to establish aprima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel").

Finally, although the sentencing record does not reflect trial counsel's specific reference to the statutory mitigating factors by their statutory numbers, trial counsel advanced mitigating factors on defendant's behalf. Judge Mullaney specifically pointed to portions of the sentencing record where trial counsel advanced mitigating factors, including defendant's desperate circumstances which led to the commission of the offenses, the absence of any express threats or the use of weapons in the commission of the offenses, and defendant's cooperation with law enforcement authorities following his apprehension.

The remaining arguments advanced are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.