STATE OF NEW JERSEY v. JAMES EICHELE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3478-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMES EICHELE,

     Defendant-Appellant.
___________________________________

              Submitted July 18, 2017 – Decided December 28, 2017

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 08-
              12-1851.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jennifer Barr Swift, Designated
              Counsel, on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Chief Appellate Attorney, of counsel; Roberta
              DiBiase, Supervising Assistant Prosecutor, on
              the brief).

        The opinion of the court was delivered by

OSTRER, J.A.D.
       Defendant appeals from the trial court's denial, without an

evidentiary hearing, of his petition for post-conviction relief

(PCR).    He does not challenge his conviction, nor the custodial

portion of his sentence.       Rather, he collaterally challenges the

trial court's order that he pay $37,071 in restitution – $22,071

to E.G., and $15,000 to L.I.1       We affirm.

       We reviewed the facts in our opinion on defendant's direct

appeal.     State v. Eichele, No. A-3954-09 (April 14, 2011).                It

suffices to note there were multiple residential burglaries in

age-restricted senior developments that followed the same modus

operandi (M.O.).     Members of a law enforcement task force arrested

defendant as he was about to burglarize a home following the same

M.O.      The police uncovered evidence that defendant had just

burglarized another home in the same development.               A subsequent

search    of   defendant's   home   uncovered    the   fruits   of   multiple

burglaries, including a pistol that belonged to E.G.

       The six-count indictment charged defendant with: (1) third-

degree attempted burglary of the home where he was arrested; (2)

third-degree burglary of the nearby home; (3) third-degree theft

of over $500 in property from that nearby home; (4) third-degree



1
  Although the restitution order named a husband and wife, La.I.
and Lo.I., the indictment named only the husband. For ease of
reference, we will refer to them collectively as L.I.

                                      2                               A-3478-15T2
receiving E.G.'s stolen firearm; (5) third-degree receiving stolen

property of ten named victims, including L.I., but not E.G.; and

(6) second-degree possession of a weapon by a convicted person.

Defendant pleaded guilty to counts one, two, five, and six.

Pursuant to the plea agreement, the State would argue for a twenty-

year    aggregate     sentence,    with       a    ten-year    period     of     parole

ineligibility, including a discretionary extended term because

defendant was a persistent offender; and defense counsel would

argue for a fifteen-year aggregate sentence, with a five-year

period of parole ineligibility.                Defendant acknowledged in his

plea form that the court might require him to pay restitution.                         He

stated on the record he read and understood the form.

       At sentencing, the State presented victim impact statements

of E.G. and L.I., setting forth in detail the uninsured losses

they incurred in the burglaries of their homes.                     Defense counsel

did    not   object   to   the    amounts         sought,    nor    did   he   contest

defendant's ability to pay.           Rather, he alluded to defendant's

intention     to   make    restitution        in    urging    the    court     to   find

mitigating factor six,2 and impose the lesser sentence of fifteen

years, with five years of parole ineligibility.




2 See N.J.S.A. 2C:44-1(b)(6) ("The defendant . . . will compensate
the victim of his conduct for the damage or injury that he
sustained . . . .").

                                          3                                     A-3478-15T2
                [DEFENSE COUNSEL]: With regards to this
           matter, I would submit mitigating factor
           number 6.      There are two amounts of
           restitution.   We really can't dispute that
           amount, because we've looked at what they
           have, and -- but really they don't have any
           other evidence besides that. So with regards
           to the amounts of restitution, those are
           fixed.

                With regard to the ability to pay, my
           client is 62 years old. Depending upon the
           sentence that your Honor imposes, there has
           to be a minimum parole stip of five years, so
           the guarantee will be 67.      And if there's
           additional time, he probably won't get out
           until he's about 70 years old. I assume at
           that time, Judge, he still will be in good
           health and he would have the ability to make
           payments -- get work and make payments towards
           that. And he is also entitled to 510 days.

                THE COURT:       All right.       [Defense
           Counsel], just before we move on, with regard
           to restitution, you've spoken with your
           client, and he agrees on the amounts, and he
           agrees he has the ability to pay once -- should
           he be released and becomes employed?

                [DEFENSE COUNSEL]: Yes, that is correct,
           your Honor.

     The court found aggravating factors three, nine, and to a

lesser   extent   six,   because   the   court   relied   on   defendant's

extensive prior record in granting the State's motion for an

extended term.3   Yet, the court also found mitigating factor six,



3 See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will
commit another offense"); 
N.J.S.A. 2C:44-1(a)(6) ("[t]he extent
of the defendant's prior criminal record and the seriousness of


                                    4                              A-3478-15T2
observing defendant's willingness to pay restitution, and his

ability to pay, at a rate set by the Division of Parole, upon his

release:

                I will indicate that I will find
           mitigating factor 6 and give minor weight to
           that given the defendant's recognition that
           he owes restitution to these victims, that he
           does not dispute the amount, and that he will
           have the ability to pay, should he be released
           from prison, and he could make payment on
           those amounts when he becomes employed and
           arrange for payments with parole once he is
           released, if he is released.

The court then imposed the lesser sentence requested by defense

counsel – an aggregate fifteen-year term, with a five-year period

of parole ineligibility – along with an order to pay $22,071 in

restitution to E.G., and $15,000 to L.I.

     In his pro se PCR petition, defendant, then still confined,4

asked that the court vacate the restitution order, order the refund

of the payments he already made through his inmate account,5 and


the offenses of which he has been convicted"); 
N.J.S.A. 2C:44-
1(a)(9) ("[t]he need for deterring the defendant and others from
violating the law").
4
  According to the Department of Corrections' website, defendant
was released on parole in September 2017.    State of New Jersey
Department of Corrections, https://www20.state.nj.us/DOC_Inmate/
details?x=1056183&n=0 (last visited Dec. 13, 2017).

5 See N.J.S.A. 30:4-92 (authorizing correctional institutions to
withdraw up to one-third of an inmate's prison income to pay
restitution).


                                 5                          A-3478-15T2
remove E.G.'s and L.I.'s victim impact statements from his record.

In support, defendant asserted that no evidence was ever presented

to support a finding that he "stole, burgled, or, in any way

possessed, any property listed" in E.G.'s or L.I.'s victim impact

statements.6 Although defendant apparently filed a counseled brief

(which is not in the record), we presume he did not submit a

supplemental factual certification, as none was provided to us.

     The trial court denied defendant's petition.   The court held

it was barred as defendant could have challenged the restitution

award on direct appeal.   The court also rejected PCR counsel's

argument that plea counsel was ineffective by failing to object

to the restitution award, noting that "defendant was, in fact,

rewarded for agreeing to make restitution to these specific two

individuals."

     In his appeal, defendant presents the following points:

          POINT I

          THE PCR JUDGE BELOW ERRED IN DENYING AN
          EVIDENTIARY    HEARING   BECAUSE    DEFENDANT
          ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS
          CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
          WOULD ULTIMATELY SUCCEED ON THE MERITS, AND A
          REMAND IS REQUIRED TO SUPPLEMENT THE RECORD.




6
 Defendant also mentioned the impact statement of another victim,
but the relevance of that statement is unclear, as the $37,071
amount was based solely on E.G.'s and L.I.'s statements.

                                6                          A-3478-15T2
           POINT II

           THE PCR JUDGE BELOW ERRED IN DENYING
           DEFENDANT'S CLAIM THAT THE RESTITUTION PORTION
           OF HIS SENTENCE IS ILLEGAL.

           POINT III

           APPELLANT COUNSEL INEFFECTIVELY REPRESENTED
           DEFENDANT BY FAILING TO RAISE THESE ISSUES IN
           THE DIRECT APPEAL (NOT RAISED BELOW).

           POINT IV

           DEFENDANT WAS ENTITLED      TO   AN   EVIDENTIARY
           HEARING ON HIS CLAIMS.

     We turn first to defendant's claim of ineffective assistance

of counsel.   As did the trial court, see State v. Harris, 
181 N.J.
 391, 421 (2004) (stating appellate court conducts de novo review

where PCR court does not hold an evidentiary hearing), we apply

the two-pronged Strickland test and determine whether the record

reveals   that   defendant's   trial   counsel   was   constitutionally

deficient, and that defendant suffered resulting prejudice.            See

Strickland v. Washington, 
466 U.S. 668, 687 (1984); State v. Fritz,


105 N.J. 42, 58 (1987).

     First, defendant has failed to establish that his plea counsel

was ineffective.      No doubt, as defendant now contends, his plea

counsel could have sought a restitution hearing, to challenge the

amounts sought and his ability to pay.      That was his right.     State

v. Martinez, 
392 N.J. Super. 307, 318-19 (App. Div. 2007).             His


                                   7                              A-3478-15T2
plea   counsel   also   could   have       challenged   the   imposition    of

restitution to E.G., since defendant did not admit to any crime

against E.G., except possession of E.G.'s stolen firearm.                  See

State v. Krueger, 
241 N.J. Super. 244, 253-54 (App. Div. 1990)

(stating that, at the time of the plea, a defendant must provide

a factual basis to support restitution for the dismissed offenses).

       However, the availability of those avenues does not make it

ineffective to bypass them.       Defendant was obliged to "overcome

the presumption that, under the circumstances, the challenged

action 'might be considered sound trial strategy.'"             Strickland,


466 U.S.  at 689 (quoting Michel v. Louisiana, 
350 U.S. 91, 101

(1955)).   "'[T]he mere existence of alternative – even preferable

or more effective – strategies does not satisfy the requirements

of demonstrating ineffectiveness under Strickland.'"               State v.

Harris, 
181 N.J. 391, 491 (2004) (quoting Marshall v. Hendricks,


307 F.3d 36, 86 (3d Cir. 2002), cert. denied, 
538 U.S. 111 (2003));

see also Knowles v. Mirzayance, 
556 U.S. 111, 123 (2009) ("The law

does not require counsel to raise every available nonfrivolous

defense.").

       Rather than challenge restitution, plea counsel embraced it.

Defense counsel withheld objection to restitution and instead

contended his client willingly accepted responsibility to pay

restitution, and thus should receive the benefit of mitigating

                                       8                             A-3478-15T2
factor six.7      He did so to persuade the court that defendant, a

career criminal, deserved some measure of leniency.           That strategy

succeeded.     Plea counsel achieved the larger goal of shaving five

years off the minimum period of incarceration for a man already

in his sixties.     Although defense counsel sacrificed any objection

to restitution, it was a sacrifice reasonably made. The sentencing

court   anticipated    that,    upon   defendant's     release,   the    Parole

Division   would    establish    a   payment    plan   consistent   with     his

resources at that time.         See State v. Newman, 
132 N.J. 159, 172

(1993) (stating that if a defendant cannot afford to pay ordered

restitution, the court cannot later change the amount, but upon

default,   the    court   can   establish   a   "reasonable   schedule       for

payment").       In sum, defendant has failed to establish a prima

facie case of ineffective assistance, notwithstanding that defense

counsel had a basis for challenging restitution.

     Nor are we persuaded that, in the absence of a factual basis

for restitution to E.G., the restitution award constituted an

"illegal" sentence that must be set aside as a form of PCR.                  The



7
  Notably, defendant says nothing in his petition regarding his
consultations with plea counsel and the strategy counsel obviously
pursued. PCR counsel argued, before the trial court, that plea
counsel did not review with defendant the presentence report,
which included the victim impact statements. However, defendant
provides no competent evidence to support that claim. See R. 1:6-
6; R. 3:22-10(c).

                                       9                                A-3478-15T2
lack of an adequate factual basis for a plea of guilty does not

automatically render a sentence "illegal."

          Our procedural Rules do require a judge to
          elicit a factual basis for a guilty plea. R.
          3:9-2. As long as a guilty plea is knowing
          and voluntary, however, a court's failure to
          elicit a factual basis for the plea is not
          necessarily of constitutional dimension and
          thus does not render illegal a sentence
          imposed without such a basis.

          [State v. Mitchell, 
126 N.J. 565, 577 (1992).]

Applying the same principles, the lack of a factual basis for the

award of restitution does not render the sentence illegal, since

defendant did not make a contemporaneous claim of innocence.    See

id. at 577-78.     Therefore, PCR is not warranted.

     To the extent not addressed, defendant's remaining arguments

lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

     Affirmed.




                                 10                        A-3478-15T2