STATE OF NEW JERSEY v. MARK M. WARNER

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK M. WARNER, a/k/a MARVIN

WARNER,

Defendant-Appellant.

________________________________________________________________

February 10, 2017

Submitted January 10, 2017 Decided

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-3025.

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

CarolynA. Murray,Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Mark Warner, appeals from the Law Division's denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm in part and remand in part.

Defendant pled guilty in 2012 to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), first-degree robbery, N.J.S.A. 2C:15-1, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1, and fourth-degree credit card theft, N.J.S.A. 21-6(c). The charges against defendant and his two co-defendants arose from their robbery of their victim, who was beaten to death by one of the co-defendants. Defendant entered his plea and agreed to testify truthfully against his co-defendant in exchange for the State's recommendation that the other charges against him, including first-degree murder, be dismissed and that he be sentenced to no more than eighteen years. At sentencing, the court imposed an aggregate sentence of seventeen years imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed, arguing only that his sentence was excessive because he received a disparate sentence as compared to his co-defendant, who had actually killed their victim,1 and who the court sentenced to nine years imprisonment after he pled guilty. We affirmed defendant's sentence, but remanded the matter to the trial court for merger of two counts for which defendant received concurrent sentences. See State v. Warner, No. A-3472-12 (App. Div. June 3, 2014).

Defendant filed a pro se PCR petition on September 12, 2014, in which he argued he received ineffective assistance of counsel because his court appointed attorneys failed to properly investigate, speak to witnesses, or file pre-trial motions seeking dismissal of the charges or suppression of his statements based upon his mental health status at the time of his arrest. In addition, trial counsel never met with defendant or went over any of the discovery obtained from the State. According to defendant, he was "bullied" into accepting a guilty plea and did not know what he was doing because he continued to suffer from mental health problems. Moreover, counsel would not assist defendant with preparing and filing a motion to withdraw his plea.

PCR counsel filed a supplemental brief on behalf of defendant. In this brief, defendant argued his petition was not procedurally barred by Rule 3:22, he was entitled to an evidentiary hearing because defendant's co-defendant "received a sentence substantially" less than defendant, and trial counsel "made no argument that defendant should [have] receive[d] the same sentence [because] defense counsel[] fail[ed] to investigate the plea offer given to" the co-defendant. PCR counsel also incorporated "all of the issues set forth in [defendant's] Pro Se petition that were not raised in [PCR counsel's] brief."

The PCR judge denied defendant's petition by order dated May 22, 2015. In her statement of reasons placed on the record that day, the PCR judge found that defendant's claims relating to his sentence were "procedurally barred because [they] were already decided on direct appeal and do[] not involve an illegal sentence allegedly in excess of or not authorized by law." The judge also found that defendant "failed to allege specific facts that [the] enforcement of the [procedural] bar . . . would result in a fundamental injustice." The judge observed that she "read the transcript[]" of defendant's plea hearing and "it was done thoroughly and that [he] knew what [he was] entering into."

Despite finding defendant's claim to be procedurally barred, the PCR judge addressed the merits of his ineffective assistance claim. After reviewing the law applicable to a court's consideration of a claim of ineffective assistance of counsel, the judge summarized defendant's argument as being based solely upon his attorney's failure to know about his co-defendant's disparate sentence. While the judge found that failing to investigate the co-defendant's plea bargain "fell below the norm of professional competence," there was no showing that had he performed that investigation the outcome would have been different. The judge found that, in fact, but for counsel's assistance, defendant more likely would have been sentenced to a longer term. She also reviewed the sentencing transcript and found that, contrary to defendant's argument, counsel in fact argued for a lesser sentence based on the co-defendant's plea offer and sentence.

After the PCR judge placed her reasons on the record, defendant attempted to alert her to the fact that she did not address any of the other issues raised in his pro se submission. Defendant stated that the excessive sentence issue "was not my petition" and that he "raised that the plea was involuntary[,] that the plea forms [were not] filled out properly," and that he was "innocent." The judge responded by only stating "it was addressed on appeal." Defendant again attempted to point out that the issues were not addressed on appeal or by the judge. The judge, however, terminated the proceedings without further comment. This appeal followed.

Defendant presents the following issues for our consideration in his appeal.

POINT I

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

IN THE ALTERNATIVE, THIS CASE MUST BE REMANDED FOR NEW PCR COUNSEL, A NEW PCR HEARING, AND A NEW PCR JUDGE BECAUSE PCR COUNSEL FAILED TO REPRESENT [DEFENDANT] AND THE PCR COURT FAILED TO CONDUCT A FULL AND FAIR HEARING.

POINT III

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW

We conclude from our review of the record that the PCR judge correctly denied defendant's petition for relief to the extent that it relied upon claims related to his receiving a disparate sentence, which he had argued to the judge at sentencing and to our excessive sentencing panel. See R. 3:22-5 (barring petitioner from asserting as grounds for relief any claim previously adjudicated on the merits). We also concur that even if the claim was not barred, there was no showing that the result in this case would have been any different, precluding a finding of ineffective assistance of counsel under the second prong of the Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)2; State v. Fritz, l 05 N.J. 42 (l987). Accordingly, as to the sentencing claim, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

We are constrained, however, to remand this matter to the PCR judge for consideration of the balance of the claims raised by defendant in his pro se petition and brief, which were incorporated into PCR counsel's supplemental submission. The record is clear that the judge did not consider those claims, despite her statement regarding the plea hearing proceedings being thorough.

Finally, as to defendant's claims of ineffective assistance of PCR counsel, we choose not to address that claim in light of our remand and Rule 3:22-4(b)(2)(C)'s provision for allowing claims alleging ineffective assistance of PCR counsel to be raised on a second petition.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 Prior to the imposition of defendant's sentence, one co-defendant pled guilty, and the other co-defendant went to trial, was convicted by a jury, and sentenced to forty years imprisonment.

2 In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.