STATE OF NEW JERSEY v. WILLIAM RANGE

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM RANGE,

Defendant-Appellant.

____________________________________

June 26, 2014

Submitted May 7, 2014 Decided

Before Judges Fuentes and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-00130.

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

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

PER CURIAM

Defendant William Range appeals from the denial of his post-conviction relief (PCR) petition. We affirm.

On March 9, 2005, defendant entered into a negotiated plea agreement through which the State agreed to amend the original charge of murder and allow defendant to plead guilty to first degree aggravated manslaughter. The State also agreed to dismiss related charges concerning unlawful possession of a weapon. On March 24, 2005, the court sentenced defendant, consistent with the plea agreement, to a term of twenty-five years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, as required under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On defendant's appeal, we reviewed the sentence imposed by the court as part of the summary process provided under Rule 2:9-11, also known as an excessive sentence oral argument (ESOA) calendar, and remanded for the trial court to reconsider the sentence after applying the analysis established by the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005). State v. William H. Range, No. A-3184-05 (App. Div. Dec. 19 2006). Adhering to our directive, the trial court re-sentenced defendant on January 19, 2007, and imposed the same term of imprisonment.

Defendant again sought appellate review on an ESOA calendar. After considering the record developed before the court at the January 19, 2007 re-sentencing hearing, we again remanded the matter to the trial court to re-sentence defendant after affording him "his right to allocution." State v. William H. Range, No. A-4308-06 (App. Div. Sept. 23, 2008). The trial court re-sentenced defendant on November 21, 2008. After affording defendant his right to allocution, the court again imposed the same sentence.

Defendant again appealed on an ESOA calendar. We affirmed. State v. William H. Range, No. A-4847-08 (App. Div. June 29, 2010). Acting on defendant's appeal, the Supreme Court denied defendant's petition for certification. However, the Court "directed [the trial court] to enter an amended judgment of conviction to reflect that it found and considered mitigating factor number four, N.J.S.A. 2C:44-1(b)(4), in imposing sentence." State v. Range, 205 N.J. 76 (2011).

On June 28, 2011, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel. The PCR court thereafter assigned counsel to represent defendant in prosecuting the petition. PCR counsel filed a brief in support of defendant's petition arguing that defense counsel was constitutionally ineffective by (1) not providing the sentencing court with medical records indicating defendant's psychiatric history, which should have been considered a mitigating factor in determining the term of the sentence, and (2) failing to argue against the findings of certain aggravating factors.

The matter came before the PCR judge on February 24, 2012. After considering the arguments of counsel, Judge Michael A. Donio denied defendant's PCR petition without an evidentiary hearing. Judge Donio found defendant had failed to establish a prima facie case of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Judge Donio explained his findings and legal analysis in an oral opinion delivered from the bench.

Judge Donio emphasized that he questioned defendant directly at the March 9, 2005 plea hearing and was satisfied from his answers and general demeanor that defendant was of sound mind. Defendant answered each question posed to him in a lucid and responsive fashion and gave no indication that he was having any difficulty understanding the nature of the charges against him. Defendant also understood his constitutional rights and knowingly waived those rights after he had the opportunity to consult with his defense counsel. Judge Donio also noted that defense counsel specifically "brought up" defendant's history of mental illness at the time of sentencing and argued that it be considered as a mitigating factor. Finally, Judge Donio noted that defendant was remorseful at the sentencing hearing and acknowledged that he had to be held "accountable for my actions."

Against this backdrop, defendant now appeals raising the following arguments.

POINT ONE

MR. RANGE'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO ARGUE EFFECTIVELY ON HIS BEHALF AT SENTENCING; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT TWO

THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW AS TO MR. RANGE'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. (Not raised below).

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Donio in his oral opinion delivered from the bench on February 24, 2012.

Affirmed.