STATE OF NEW JERSEY v. MICHAEL GRAY

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL GRAY,

Defendant-Appellant.

_______________________________

May 5, 2014

Submitted January 23, 2014 - Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3091.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

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

PER CURIAM

Defendant, Michael Gray, appeals from the denial of his petition for post-conviction relief (PCR), in which he alleged ineffective assistance of trial counsel at sentencing. We affirm.

A grand jury indicted defendant on charges of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two), and fourth-degree contempt (violating a temporary restraining order), N.J.S.A. 2C:29-9(b) (count three). The charges arose out of events occurring in the early morning hours of February 28, 2009, when defendant set fire to his home, from which he had been restrained by a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -35. Defendant was one of the first non-emergency persons to arrive at the scene, initially telling police he just happened to be in the area when he saw smoke and decided to check it out. A brief investigation resulted in police discovering the 9-1-1 call reporting the fire came from defendant's cell phone. Defendant confessed to starting the fire and admitted he knew his step-daughter was asleep in the house.

At the time of the incident, defendant and his wife were separated. Defendant, who had been experiencing psychiatric symptoms, had been diagnosed as suffering from depressive disorder, recurrent mood disorder, possible bi-polar disorder, and as having experienced suicidal ideation. He had ceased taking his medications.

On November 9, 2009, he entered into a negotiated plea agreement, pleading guilty to second-degree aggravated arson. In exchange, the State agreed to recommend a six-year custodial term and to dismiss the remaining counts of the indictment. Two months later, defendant appeared for sentencing. He addressed the court personally and expressed his remorse and regret. In addition, he spoke about his mental health history and he asked the court for leniency. His attorney did not raise any mitigating factors the court should consider but merely requested that defendant be sentenced in accordance with the agreement. The court, however, considered, but found no mitigating factors. The court found three aggravating factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant from committing further violations of the law, N.J.S.A. 2C:44-1(a)(9). The court sentenced defendant to a six-year custodial term in accordance with the plea agreement.

Defendant took no direct appeal. On April 16, 2011, however, he filed a pro se PCR petition. After being assigned counsel, defendant's attorney filed a brief on his behalf, alleging ineffective assistance of counsel, based upon trial counsel's failure to raise any mitigating factors, specifically: (1) "There were substantial grounds tending to excuse or justify the defendant's conduct," N.J.S.A. 2C:44-1(b)(4); (2) "The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service," N.J.S.A. 2C:44-1(b)(6); (3) "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 the commission of the present offense," N.J.S.A. 2C:44-1(b)(7); (4) "The defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8); and (5) "The character and attitude of the defendant indicate that he is unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(9).

Although the issue of trial counsel's failure to argue any mitigating factors was addressed during the hearing, the PCR judge did not specifically find that counsel was ineffective for failing to advance any mitigating factors. Rather, in specific detail, the judge addressed each mitigating factor, which PCR counsel urged trial counsel should have raised. The judge explained why the factors proposed did not apply and also noted that defendant received a sentence one year above the bottom end of a second-degree crime. Additionally, addressing the contention his pre-existing mental health condition was not presented to the court the way it should have been, the judge pointed out defendant's mental health issues did not negate his knowing and intentional conduct. The judge found that defendant failed to satisfy the requirements of either prong of the two-prong test for PCR. He also found that even if defendant had satisfied the first prong, he failed to satisfy the second prong and, therefore, defendant was not prejudiced and the same sentencing result would have occurred. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

Point I

The order denying [PCR] should be reversed and the matter remanded for a resentencing hearing (in which the base custodial sentence cannot be increased) because the defendant made a prima facie showing that his fourteenth amendment due process right under the code of criminal justice to a sentencing hearing in which all applicable mitigating factors are considered, and all inapplicable aggravating factors rejected, was violated.

Point II

The order denying [PCR] should be reversed because defendant established by the preponderance of the evidence ineffective assistance of trial counsel at sentencing.

We have considered the points raised in light of the record, arguments advanced on behalf of defendant in the brief, and the governing legal principles. Although we disagree with the PCR judge's conclusion that defendant failed to satisfy the first prong, we nonetheless concur defendant failed to satisfy the second prong.

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) 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 279-80. Thus, both prongs of the Strickland/Fritz test must be satisfied before PCR may be granted. Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

In State v. Hess, 207 N.J. 123 (2011), the court held that when an attorney, at sentencing, fails to advance applicable mitigating factors for the court's consideration, that attorney as abdicated his or her obligation to his client, with the net effect resulting in the court being "deprived of information and arguments that might well have led it to impose a lesser term." Id. at 154. This ineffectiveness is not vitiated by the existence of a plea agreement. Ibid.

Here, the sentencing court was well-aware of defendant's mental health issues, which were detailed in the presentence report and about which defendant spoke during the sentencing hearing. In so far as his expressed willingness to compensate the victims, putting aside the emotional trauma suffered by his family as a result of defendant's crime, which is not easily measured monetarily, defendant proffered nothing to the PCR court detailing the extent of the property damage caused to the former marital home. Nor did his petition set forth an amount of restitution he would have offered had trial counsel advanced this mitigating factor. The issue of restitution was left open at sentencing, and since that time, defendant has come forth with no concrete numbers or other evidence demonstrating his ability and willingness to make restitution. As such, his expressed willingness to make restitution is no more than a bald assertion. See State v. Cummings, 321 N.J Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that to present a prima facie case, a defendant must do more than make bald assertions and must allege sufficient facts). Additionally, although defendant had no prior convictions, there were prior arrests and an outstanding arrest warrant, leading the court to consider that there was a risk defendant would engage in further violations of the law and negate application of mitigating factors seven, eight, and nine. N.J.S.A. 2C:44-1(b)(7), (8) and (9). Finally, defendant's six-year custodial sentence was one year greater than the minimum period of incarceration mandated for a second-degree crime, for which there is a presumption of incarceration.

To summarize, defendant satisfied the first prong of the Strickland/Fritz test by demonstrating that trial counsel's performance at sentencing fell below acceptable standards of effective assistance of counsel guaranteed to defendant under both federal and state constitutions. However, if trial counsel had advanced any mitigating factors on defendant's behalf, in reasonable probability, it would not have resulted in the imposition of a reduced sentence.

Affirmed.