STATE OF NEW JERSEY v. CHRISTOPHER M. WELCH

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2674-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPHER M. WELCH,

     Defendant-Appellant.
_________________________

                   Submitted November 18, 2020 – Decided December 17, 2020

                   Before Judges Whipple, Rose, and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 15-07-
                   0598.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering, Senior
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant, Christopher M. Welch, appeals the trial court's September 25,

2018, denial of his petition for post-conviction relief (PCR) following an

evidentiary hearing. We affirm.

      Defendant raises the following issue on appeal:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] BECAUSE
            THE    TESTIMONY    PRODUCED     AT  THE
            EVIDENTIARY       HEARING      SUPPORTED
            COUNSEL'S INEFFECTIVENESS AT SENTENCING
            IN FAILING TO RAISE MITIGATING FACTORS.

                                        I.

      We discern the following facts from the record.       On May 17, 2015,

defendant was arrested in Beesley's Point, Upper Township, following a high -

speed police chase after he ignored police signals to stop. Defendant abandoned

his vehicle and fled on foot. He was apprehended near Great Egg Harbor Bay,

and a search of his vehicle yielded burglar's tools.

      On July 21, 2015, defendant was charged with second-degree eluding,

 N.J.S.A. 2C:29-2(b); third-degree attempted burglary,  N.J.S.A. 2C:5-1(a); and

third-degree conspiracy,  N.J.S.A. 2C:5-2(a) and 2C:18-2(a). He was also issued

motor vehicle tickets, including one for reckless driving. On February 11, 201 6,

defendant entered into a plea agreement with the State before the plea court.


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Under the terms of the agreement, defendant pled guilty to a reduced charge of

third-degree eluding law enforcement in exchange for dismissal of the remaining

counts against him.     He had an extensive, multi-state criminal history and

reported "no depression or emotional problems" and "denied any history of

psychological or emotional problems or treatment for either" during his plea

allocution. The plea court found defendant freely and voluntarily waived his

right to trial and intelligently entered the guilty plea.

      On March 18, 2016, defendant appeared before the trial court for

sentencing.    Defendant's attorney, Salvatore Imperiale, did not argue any

mitigating factors because he determined none applied. Imperiale requested that

defendant be sentenced in accordance with the plea agreement and be given the

shortest possible license suspension because of a job waiting for him upon

release.

      The sentencing court found aggravating factors three,  N.J.S.A. 2C:44-

1(a)(3) (the risk that defendant will commit another crime); six,  N.J.S.A. 2C:44-

1(a)(6) (the extent of defendant's prior criminal record and the seriousness of

the offenses of which defendant has been convicted); and nine,  N.J.S.A. 2C:44-

1(a)(9) (the need for deterring defendant and others from violating the law)




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applied, and that there were no mitigating factors. Defendant was sentenced to

five years' imprisonment with a one-year period of parole ineligibility.

      On September 16, 2016, defendant was denied parole and a twenty-month

future-eligibility term was set because of his repetitive offense record,

commission of an offense while on probation, serious institutional infractions ,

and incarceration did not deter his criminal behavior.

      Defendant filed a timely pro se PCR petition in December 2016, asserting

that his guilty plea was not knowingly and intelligently made due to his

psychiatric disorders. He also contended that his sentencing counsel, Imperiale,

was ineffective for coercing him into pleading guilty; for failing to investigate

and corroborate defendant's claims as to potential evidence in support of

mitigating factors; for not raising mitigating factors at sentencing; for not

seeking alternative treatment for his addiction and psychiatric disorders; and for

not enrolling him in Drug Court.

      In April 2017, PCR counsel, Eric C. Spero, entered an appearance on

behalf of defendant and filed a brief in support of defendant's PCR petition in

July 2017. PCR counsel reiterated defendant's arguments and also asserted that

sentencing counsel was ineffective for failing to have defendant undergo a

mental health examination, which ostensibly would have revealed he suffered


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from mental health disorders precluding him from making a knowing and

intelligent decision to enter a guilty plea. Specifically, defendant alleged that

sentencing counsel should have conducted proper investigations and raised

mitigating factors four,  N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to

excuse or justify defendant's conduct, though failing to establish a defense); ten,

 N.J.S.A. 2C:44-1(b)(10) (defendant is particularly likely to respond

affirmatively to probationary treatment); and twelve,  N.J.S.A. 2C:44-1(b)(12)

(the willingness of defendant to cooperate with law enforcement authorities), at

the sentencing hearing. PCR counsel further contended that defendant believed

his prior counsel was conspiring with the State to convict him. The State agreed

that defendant's PCR petition and supporting brief warranted an evidentiary

hearing because a prima facie showing of ineffective assistance of counsel was

established.

      The PCR court granted an evidentiary hearing that was conducted over a

period of four days spanning four months. At the onset of the hearing, PCR

counsel retracted the contention that sentencing counsel was ineffective for

failing to seek Drug Court admission for defendant. Counsel conceded that

defendant was ineligible for enrollment in Drug Court because of active arrest

warrants issued against him by several courts in the Commonwealth of


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Pennsylvania. On July 11, 2018, before the fourth and final day of the hearing,

PCR counsel informed the court that defendant waived, withdrew, and

dismissed, with prejudice, all of his arguments, except for the contention that

sentencing counsel was ineffective for failing to argue mitigating factors four,

ten, and twelve.    The PCR court entered a memorializing order that day

confirming defendant's representation.

      During the hearing, defendant's sentencing attorney, Imperiale, testified

he went over the plea agreement with defendant in detail; that defendant was

"thrilled" with the plea offer; and defendant wanted to get sentenced quickly.

Imperiale indicated he did not think any mitigating factors applied; therefore, he

did not advance them at the sentencing hearing.         Furthermore, sentencing

counsel testified that information regarding defendant's mental health issues was

outdated and contradicted by his representations in the pre-trial sentencing

report. Because of defendant's criminal history and past violations of probation,

sentencing counsel was prevented from seeking probation. Finally, Imperiale

stated he was unable to corroborate defendant's alleged cooperation with law

enforcement in Maryland.

      The PCR court also heard testimony from Detective Carl Perry of the

Ocean City, Maryland police department, Dr. Gerald Cooke, Detective Aaron


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Sykes of the Cape May Prosecutor's Office, Eleanor Welch, defendant's mother,

and Assistant Prosecutor Michelle DeWeese of the Cape May County

Prosecutor's Office. Eleanor Welch testified that her son suffers from bipolar

disorder but has refused treatment. Defendant claimed he advised Imperiale to

contact Dr. Cooke. In response, Imperiale testified that defendant wanted to

present a diminished capacity defense but focused on the "numbers" instead and

wanted a "flat offer."

      On September 25, 2018, the PCR court denied defendant's PCR petition.

The court found no merit to defendant's assertion that his sentencing counsel

was constitutionally ineffective for failing to investigate and present mitigating

factors at sentencing. Further, the PCR court found sentencing counsel was

credible in requesting the services of Dr. Cooke through the public defender's

office, reviewing defendant's 2006 mental health report, and that he discussed

capacity defenses with defendant. The PCR court also found defendant forged

letters presented during the hearing and that he told Imperiale "he could fool D r.

Cooke" and create a fabricated record in order to avoid criminal liability.

                                        II.

      Claims of ineffective assistance of counsel are governed by the standards

set forth in Strickland v. Washington,  466 U.S. 668 (1984). See State v. Fritz,


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 105 N.J. 42, 58 (1987) (adopting the Strickland standard in New Jersey). For a

defendant to establish a prima facie case of ineffective assistance of counsel

under Strickland, the defendant must show that defense "counsel's performance

was deficient," and that "there exists 'a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.'" State v. Preciose,  129 N.J. 451, 463-64 (1992) (quoting Strickland,

 466 U.S. at 694); see also State v. Allegro,  193 N.J. 352, 366 (2008).

      "The first prong of the [Strickland] test is satisfied by a showing that

counsel's acts or omissions fell outside the wide range of professionally

competent assistance considered in light of all the circumstances of the case."

Allegro,  193 N.J. at 366 (quoting State v. Castagna,  187 N.J. 293, 314 (2006)).

To satisfy the second prong of Strickland, a defendant must prove "'that there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.'" Id. at 367 (quoting State v.

Loftin,  191 N.J. 172, 198 (2007)). The second prong is "an exacting standard:

'[t]he error committed must be so serious as to undermine the court's confidence

in the jury's verdict or the result reached.'" Ibid. (quoting Castagna,  187 N.J. at
 315). Applying this standard, we reject defendant's arguments.




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      Where there has been an evidentiary hearing, we review a PCR petition

with deference to the trial court's factual findings. State v. Nash,  212 N.J. 518,

540 (2013) (citations omitted). To the extent defendant's arguments challenge

the PCR court's legal conclusion, our review is de novo. State v. Parker,  212 N.J. 269, 278 (2012).

      Defendant contends that evidence of his mental health history should have

been raised at the sentencing hearing in support of mitigating factor four and

that his addiction and mental health issues made him an ideal candidate for Drug

Court or probation under mitigating factor ten. As to mitigating factor twelve,

defendant asserts he provided sentencing counsel with the name of an FBI agent

and a transcript from a Pennsylvania case evidencing his cooperation with law

enforcement.

      In State v. Hess, our Supreme Court held that "failing to present mitigating

evidence or argue for mitigating factors" may constitute ineffective assistance

of counsel.  207 N.J. 123, 154 (2011). The Court opined "[d]efense counsel's

failure to bring relevant information in his file to the attention of the [sentencing]

court so that the court could independently identify and weigh mitigating factors

cannot be ascribed to strategy or reasonable professional judgment." Id. at 149-

50.   However, the Court has also acknowledged that a "failure to raise


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unsuccessful legal arguments does not constitute ineffective assistance of

counsel." State v. Worlock,  117 N.J. 596, 625 (1990).

      Here, the PCR court determined that sentencing counsel's decision not to

raise any mitigating factors was "well within his professional discretion." Based

on the available evidence, sentencing counsel reasonably believed the law and

facts disfavored raising mitigating factors four, ten, and twelve at the sentencing

hearing.   The PCR court's finding was based on the sufficiently credible

testimony of defendant's sentencing attorney.

      There was ample evidence in the record to support the PCR court's

conclusion that defendant was "manipulative" for arguing mitigating factor four

and seeking to create an illegitimate defense to avoid accountability for his

actions. We previously affirmed a sentencing court's refusal to find mitigating

factor four where the defendant "consistently used manipulation to avoid or

reduce punishment." In re Civil Commitment of W.X.C.,  407 N.J. Super. 619,

627 (App. Div. 2009).       Here, sentencing counsel testified that defendant

disclosed he wrote letters claiming he was hallucinating in order to "create a

paper trail in case we needed to use it for a psych defense." Defendant's lack of

credibility is supported by the record.




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      As to mitigating factor ten, defendant conceded during the PCR hearing

that he was ineligible for Drug Court. Moreover, defendant's extensive criminal

record essentially eliminated the prospect of probation. The sentencing court

noted defendant's extensive "multi-state criminal history [dating] back to 1994

and consist[ing] of [fifteen] juvenile arrests and [twenty-one] adult arrests." In

addition, the sentencing court noted defendant had a pending "[violation of

probation] in both Delaware and Philadelphia . . . [and] fugitive charges in Cape

May County." Therefore, the PCR court aptly concluded that "no reasonable

defense attorney would have attempted to argue that defendant was particularly

likely to respond to probation."

      As to mitigating factor twelve, defendant asserted he cooperated in a

number of criminal investigations in various jurisdictions including Ocean City,

Maryland, and that sentencing counsel was ineffective for failing to investigate

his claims. We disagree. Detective Carl Perry of the Ocean City, Maryland

police department testified that defendant contacted him to provide information,

but the information did not lead to any arrests or prosecutions. And, the record

reveals that defendant refused to identify the individual allegedly present in the

courtroom during his sentencing hearing, who was involved in a purported FBI

matter. Moreover, dicta from a Pennsylvania court indicates defendant used


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similar vague examples of his alleged cooperation with law enforcement in order

to avoid criminal repercussions.

      Cooperation with law enforcement is only considered as mitigating

evidence in limited circumstances and does not apply to every defendant who

answers police questions about his own charged conduct. State v. Read,  397 N.J. Super. 598, 613 (App. Div. 2008). We held that cooperation is unlikely to

be found as a mitigating factor where it does not identify other perpetrators or

assist in solving other crimes. Ibid. Therefore, the PCR court was correct in

finding that sentencing counsel was reasonable in not arguing mitigating factor

twelve at the time of sentencing.

      Moreover, to satisfy the second prong of the Strickland test, defendant

also needs to establish that but for his counsel's errors, there is "a reasonable

probability that . . . the result of the proceeding would have been different."  466 U.S.  at 687; see also Fritz,  105 N.J. at 52. A reasonable probability is one

"sufficient to undermine confidence in the outcome" of the litigation. Fritz,  105 N.J. at 52 (quoting Strickland,  466 U.S. at 694). The error must have more than

some "conceivable effect on the outcome of the trial." State v. Sheika,  337 N.J.

Super. 228, 242 (App. Div. 2001).




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      Having carefully reviewed the record, we reject defendant's argument that

his sentencing counsel was ineffective for not arguing the mitigating factors

discussed.   Here, defendant fails to provide any evidence that presenting

mitigating factors four, ten, and twelve at sentencing would have changed the

outcome. Defendant's sentence was exactly what he bargained for in his plea

agreement. Without the ability to meet the second prong of the Strickland test,

this court concludes the PCR court correctly denied defendant's PCR petition.

      Affirmed.




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