STATE OF NEW JERSEY v. MELVIN M. SOLOMON

NOT FOR PUBLICATION WITHOUT THE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-2271-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MELVIN M. SOLOMON,

     Defendant-Appellant.
__________________________

                    Submitted January 23, 2019 – Decided February 4, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 10-10-
                    1103.

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

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Melvin M. Solomon appeals from a November 14, 2017 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      On January 15, 2010, defendant entered Beneficial Bank in Cinnaminson

Township wearing a gas mask and demanded money from a teller in a

threatening manner. After the teller gave him the money, defendant fled the

bank but later surrendered to the police after a warrant was issued for his

arrest.

      In an October 26, 2010 indictment, defendant was charged with one

count of second-degree robbery,  N.J.S.A. 2C:15-1(a)(2) (count one), and one

count of the first-degree offense of employing a juvenile in the commission of

a crime,  N.J.S.A. 2C:24-9(a) (count two). On the first day of trial, the court

granted the State's motion to dismiss count two, and defendant pled guilty to

count one pursuant to an "open plea," which was not conditioned on his

acceptance and entry into the Drug Court program.1

      Sentencing was delayed to permit defendant to apply for entry into the

Drug Court program.     After the court affirmed defendant's denial into the

1
  An "open plea" is a plea "that d[oes] not include a recommendation from the
State, nor a prior indication from the court, regarding sentence." State v.
Kates,  426 N.J. Super. 32, 42 n.4 (App. Div. 2012)(citation omitted).


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program, defendant appeared for sentencing. At sentencing, defendant's trial

counsel represented that the presentence report was accurate, with the

exception of a jail credit issue. However, the presentence report erroneously

stated that defendant was found guilty of robbery in the Philadelphia Court of

Common Pleas in 1993. The disposition sheet from that court confirmed that

defendant actually was found guilty of terroristic threats, but was found not

guilty of the robbery charge.

      Counsel argued that mitigating factors seven (no history of criminal

activity or led a law-abiding life for a substantial period before offense) and

ten (particularly likely to respond affirmatively to probationary treatment),

 N.J.S.A. 2C:44-1(b)(7) and (10), applied. He explained that defendant had

lived a substantially law-abiding life, but had suffered from a serious cocaine

addiction at the time of the robbery. He also noted that defendant, a veteran,

had previously complied with treatment for post-traumatic stress disorder

(PTSD).

      The court found that aggravating factors three (risk of reoffending), six

(extent of prior criminal record and seriousness of the offenses), and nine

(need for deterrence),  N.J.S.A. 2C:44-1(a)(3), (6), (9), applied. It also agreed

with defense counsel that mitigating factors seven and ten applied, and


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recognized defendant's PTSD, substance abuse issues, prior service with the

City of Philadelphia Fire Department, and his honorable discharge from the

United States Marines Corps. It further found mitigating factor six (defendant

will compensate the victim),  N.J.S.A. 2C:44-1(b)(6), applied since defendant

was ordered to pay restitution to the bank.

      After balancing the aggravating and mitigating factors, the court

concluded that the aggravating factors outweighed the mitigating factors. The

court sentenced defendant to six years in state prison with an 85% parole

disqualifier, and three years parole supervision upon release. Defendant was

also ordered to pay fines, penalties, and restitution in the amount of $6272 to

Beneficial Bank.

      Defendant appealed his sentence. We affirmed the court's decision to

deny defendant's entry into the Drug Court program, but remanded for

resentencing because the court's findings on aggravating factor six and

mitigating factor seven were "facially irreconcilable," and because mitigating

factor ten was "not applicable as a matter of law" since "defendant was




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sentenced to prison for a crime that has a presumption of incarceration." State

v. Solomon, No. A-4402-14 (App. Div. Oct. 28, 2015).2

      At resentencing, the court reduced defendant's custodial sentence from

six years to five years, with an 85% parole disqualifier. The court found that

aggravating factors three and nine applied, but that aggravating factor six was

inapplicable since defendant had not been convicted of robbery in

Pennsylvania. It also found that mitigating factors six and seven applied, but

that mitigating factor ten did not.

      Defendant again appealed his sentence and we affirmed, but remanded

for the "entry of a corrected judgment of conviction to include the proper

number of jail credits . . . and/or gap-time credits . . . ." State v. Solomon, No.

A–2022-15 (App. Div. May 4, 2016). The Supreme Court denied defendant's

petition for certification on June 3, 2016. State v. Solomon,  226 N.J. 212

(2016). On June 10, 2016, defendant's judgment of conviction was amended to

reflect his entitlement to 212 days of jail credits and 329 days of service credit.




 2 Our October 28, 2015 order, and the Supreme Court's June 1, 2016 order
denying certification, incorrectly spelled defendant's surname as Soloman.


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      Defendant filed a timely pro se PCR petition on January 18, 2017. In

July 2017, assigned counsel filed an amended petition and a brief, and

defendant submitted a certification in further support of his petition.

      PCR counsel maintained that defendant received ineffective assistance

of counsel at sentencing because trial counsel failed to investigate and raise

mitigating factors four (substantial grounds tending to excuse or justify

defendant's conduct), eight (defendant's conduct resulted from circumstances

unlikely to recur), nine (defendant's character and attitude indicate he or she is

unlikely to commit another offense), and ten,  N.J.S.A. 2C:44-1(b)(4), (8), (9),

(10). PCR counsel further asserted that trial counsel should have submitted

defendant's medical records and letters from friends and family concerning his

good character to the sentencing court.

      Although he had signed a release form, defendant certified that he did

not know if counsel obtained his medical records, and that counsel "never

discussed the possibility of presenting mitigating evidence to the court" with

him. Finally, PCR counsel maintained an evidentiary hearing was warranted

to address counsel's ineffective representation.

      After hearing oral arguments, the court reserved decision. On November

14, 2017, Judge Philip E. Haines, who presided over both sentencing hearings,


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rendered a nine-page written opinion and order and concluded that defendant

failed to satisfy either prong of the two-part test for ineffective assistance of

counsel detailed in Strickland v. Washington,  466 U.S. 668 (1984), and

adopted by the New Jersey Supreme Court in State v. Fritz,  105 N.J. 42

(1987), and denied his request for an evidentiary hearing.

      The court concluded that although counsel did not specifically identify

mitigating factors four, eight, and nine, trial counsel brought relevant

supporting facts to the court's attention at both the initial sentencing and

resentencing proceedings, including defendant's mental health and substance

abuse disorders, compliance with treatment, and his having led a substantially

law-abiding life. Judge Haines also found that defendant had not demonstrated

that his sentence would have been any different if counsel had specifically

identified those mitigating factors, as the sentencing court considered the

relevant facts and still did not conclude that mitigating factors four, eight, or

nine applied.

      As to mitigating factor ten, Judge Haines noted that, contrary to

defendant's claims, his trial counsel specifically raised and argued for

consideration of that factor.     In addition, the court explained that we

determined in our October 28, 2015 order that mitigating factor ten was


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inapplicable because defendant was sentenced for a crime that carried a

presumption of incarceration. Judge Haines also rejected defendant's claim

that his trial counsel was ineffective for failing to argue relevant non-statutory

mitigating factors, such as his military service and employment with the City

of Philadelphia Fire Department, because trial counsel actually raised those

facts to the sentencing court.

      Judge Haines disagreed with defendant's claim that he was "denied

adequate representation because [trial counsel] failed to correct" the erron eous

statement in the presentencing report that he had been convicted of a robbery.

Judge Haines explained that plaintiff was not prejudiced by counsel's error

because we reversed his initial sentence based on the first sentencing court's

reliance on the robbery conviction to support aggravating factor six.

      At resentencing, the court concluded aggravating factor six did not apply

and resentenced defendant to a decreased term of incarceration, from six years

to five years. Finally, Judge Haines determined that an evidentiary hearing

was not required because plaintiff failed to establish a prima facie case of

ineffective assistance of counsel and the petition could be decided on the "filed

papers, transcripts, and oral arguments of counsel," and without testimony.

      On appeal, defendant raises the following points:


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           POINT I

           THE POST-CONVICTION RELIEF COURT ERRED
           IN DENYING THE DEFENDANT'S PETITION FOR
           POST-CONVICTION   RELIEF    SINCE   THE
           DEFENDANT FAILED TO RECEIVE ADEQUATE
           LEGAL   REPRESENTATION    FROM    TRIAL
           COUNSEL    AT   SENTENCING,    THEREBY
           DENYING TO HIM AN OPPORTUNITY TO
           RECEIVE A SENTENCE COMMENSURATE WITH
           A THIRD DEGREE OFFENSE, ONE DEGREE
           LOWER THAN THE CHARGE TO WHICH HE
           PLED GUILTY.

           POINT II

           THE    DEFENDANT    DID   NOT  RECEIVE
           ADEQUATE LEGAL REPRESENTATION FROM
           TRIAL COUNSEL AS A RESULT OF COUNSEL'S
           FAILURE TO DEMONSTRATE THE EXISTENCE
           OF    NUMEROUS     MITIGATING FACTORS
           IGNORED BY THE TRIAL COURT, BY FAILING
           TO ADDRESS THE INAPPLICABILITY OF AT
           LEAST ONE AGGRAVATING FACTOR FOUND
           BY THE TRIAL COURT TO EXIST, AND BY
           FAILING TO PRESENT A COGENT ARGUMENT
           REQUESTING THE TRIAL COURT IMPOSE A
           SENTENCE COMMENSURATE WITH A THIRD
           DEGREE OFFENSE.[3]

     Having considered the record in light of the applicable legal principles,

we find no merit in defendant's arguments. Judge Haines's decision is fully


3
   For convenience and clarity, we have renumbered the point headings in
defendant's brief.


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supported by the record and is legally sound. We offer only the following

brief comments.

       The PCR process provides a defendant a "last chance to challenge the

'fairness and reliability of a criminal verdict . . . .'" State v. Nash,  212 N.J.
 518, 540 (2013) (quoting State v. Feaster,  184 N.J. 235, 249 (2005)). When no

evidentiary hearing is held, we review de novo "both the factual findings and

legal conclusions of the PCR court . . . ." State v. Harris,  181 N.J. 391, 421

(2004).

       Because defendant's PCR petition is predicated on his claim that trial

counsel was ineffective, he must satisfy the two-part test pronounced in

Strickland by demonstrating that "counsel's performance was deficient," that

is, "that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland,  466 U.S.  at 687; see also Fritz,  105 N.J. at 58. The first prong requires a showing

that   "counsel's   representation   fell   below   an   objective   standard    of

reasonableness." Strickland,  466 U.S.  at 688. It is the defendant's burden to

prove by a preponderance of the evidence that counsel's decisions about trial

strategy were not within the broad spectrum of competent legal representation.

See Fritz,  105 N.J. at 52.


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      Under the second prong, a defendant must demonstrate that his counsel's

errors prejudiced the defense to the extent that the defendant was deprived of a

fair and reliable outcome. Strickland,  466 U.S.  at 687. To prove this element,

a defendant must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      Here, defendant failed to satisfy either prong of the Strickland/Fritz test.

As Judge Haines correctly concluded, defendant's trial counsel was not

ineffective for failing to identify mitigating factors four, eight, and nine and

certain non-statutory mitigating factors because he provided the sentencing

court with the factual bases in support of those factors.

      For example, at the January 16, 2015 sentencing hearing, trial counsel

advised the court of defendant's PTSD and drug addiction, which PCR counsel

claims are relevant to mitigating factor four.4 Similarly, at the December 11,

2015 resentencing hearing, trial counsel stressed that the defendant had largely

4
    In light of this evidence, defendant's claim that "trial counsel never
discussed the possibility of presenting mitigation evidence to the sentencing
judge" is belied by the record. Further, although defendant submitted medical
records to the PCR court, he failed to identify any medical condition contained
in those documents that trial counsel failed to raise with the sentencing courts
and which would have affected the outcome of the proceeding.



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lived a law-abiding life, was a former Marine and had worked for the

Philadelphia Fire Department - all facts which PCR counsel acknowledged are

relevant to mitigating factors eight and nine. Further, as Judge Haines noted,

contrary to defendant's claim, his trial counsel raised mitigating factor ten.

      Defendant also failed to demonstrate that but for his counsel's alleged

errors there was a reasonable probability the result of his sentencing

proceeding would have been different. See Strickland,  466 U.S.  at 694. To

satisfy his burden of establishing a reasonable probability the results of the

proceedings would have been different, defendant must establish "a probability

sufficient to undermine confidence in the outcome." Ibid.

      With respect to trial counsel's failure to object to the mistaken robbery

conviction in defendant's pre-sentence report, any error did not result in an

improper sentence, as the sentencing court did not rely on that error when

defendant was resentenced. Likewise, defendant cannot establish he would

have received a reduced sentence simply because counsel failed to identify the

specific mitigating factors for the sentencing court. As noted, defendant's trial

counsel provided the factual bases for all relevant mitigating factors which the

court considered.




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      Finally, defendant argues that the PCR court erred by failing to conduct

an evidentiary hearing. We disagree.

      Merely raising a claim for PCR does not entitle the defendant to an

evidentiary hearing. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999).   Rather, trial courts should grant evidentiary hearings only if the

defendant has presented a prima facie claim of ineffective assistance, material

issues of disputed fact lie outside the record, and resolution of the issues

necessitate a hearing. R. 3:22–10(b); State v. Porter,  216 N.J. 343, 355 (2013).

A hearing was not required here because defendant failed to establish a prima

facie case for PCR, there were no material issues of disputed fact that could

not be resolved by reference to the existing record, and an evidentiary hearing

was not required to resolve defendant's claims. R. 3:22-10(b).

      Affirmed.




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