STATE OF NEW JERSEY v. KEN GUNTER

NOT FOR PUBLICATION WITHOUT THE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-0198-19T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

KEN GUNTER,

     Defendant-Appellant.
________________________

                   Submitted January 11, 2021 – Decided January 26, 2021

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-09-2431.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Caitlinn Raimo,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Ken Gunter appeals from a June 26, 2019 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

      In June 22, 2017, defendant entered a store in Newark with a "loaded and

operable" handgun. He approached the store's employees, demanded money,

and threatened the employees with the gun. Defendant took $200 placed on the

counter by the employees and fled the store. Two weeks later, defendant was

arrested. In September 2017, defendant was indicted on the following charges:

first-degree robbery,  N.J.S.A. 2C:15-1; second-degree unlawful possession of a

weapon,  N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an

unlawful purpose,  N.J.S.A. 2C:39-4(a).

      Defendant entered a guilty plea as to robbery and unlawful possession of

a weapon. In return for defendant's guilty plea, the State agreed to dismiss the

possession of a weapon for an unlawful purpose charge.

      At the sentencing hearing, the judge reviewed the pre-sentence

investigation report, which detailed a history of juvenile adjudications, seven

adult arrests with three indictable convictions, and defendant's struggle with

substance abuse. The judge found aggravating factors three, six, and nine were

applicable.  N.J.S.A. 2C:44-1(a)(3), (6), (9). He found no mitigating factors.


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Thus, the judge concluded the aggravating factors outweighed the mitigating

factors and sentenced defendant in accordance with the plea. On the robbery

charge, defendant was sentenced to fifteen years in prison subject to the No

Early Release Act,  N.J.S.A. 2C:43-7.2. On the unlawful possession of a weapon

charge, defendant was sentenced to a concurrent ten-year prison term with a

five-year parole disqualifier. The remaining count was dismissed.

      In September 2018, defendant filed a pro se PCR petition, and his assigned

counsel submitted a supporting brief. Defendant argued he was dissatisfied with

his court appointed trial counsel. He also claimed no gun was recovered and the

crime was not reported until one week later. In his petition, defendant focused

the ineffective assistance of counsel argument on his counsel's failure to provide

the sentencing court with proofs supporting two mitigating factors:  N.J.S.A.

2C:44-1(b)(2), defendant did not contemplate his conduct would cause or

threaten harm, and  N.J.S.A. 2C:44-1(b)(13), defendant's youthful conduct was

substantially influenced by another, more mature person, claiming, specifically,

defendant was influenced by his father.

      Judge Michael A. Petrolle conducted a non-evidentiary PCR hearing on

June 26, 2019.    The judge rendered an oral decision, concluding defen se




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counsel's failure to raise the asserted mitigating factors did not constitute

ineffective assistance of counsel.

       Regarding the failure to advance the argument at sentencing that

defendant did not contemplate his conduct would cause or threaten serious harm,

Judge Petrolle concluded the "fact that [defendant] had a gun, whether it [was]

loaded or not[,] [was] suspicion to both cause or threaten harm." 1 Further, the

judge explained, "[T]o say the defense did not contemplate that the conduct

would cause or threaten harm is to ignore the truth of life, which is that anybody

who points a gun or uses a gun toward another person is contemplating the threat

of harm."

       Judge Petrolle determined defendant failed to satisfy the two-part test

under the Strickland/Fritz 2 analysis in support of the ineffective assistance of

counsel claim. He found "no deficiency in the performance of the attorney" as

a result of failing to raise inapplicable mitigating factors. He also concluded

there was no "prejudice to [defendant] because there [was] no deficiency."

Consequently, the judge denied defendant's PCR petition.



1
    During the plea hearing, defendant admitted the gun was "loaded and operable."
2
  Strickland v. Washington,  466 U.S. 668, 687 (1984), and State v. Fritz,  105 N.J. 42, 58 (1987).
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      On appeal from denial of his PCR petition, defendant raises the following

argument:

      POINT ONE

            MR. GUNTER IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS CLAIM THAT TRIAL COUNSEL
            RENDERED INEFFECTIVE ASSISTANCE OF
            COUNSEL BY FAILING TO ADVOCATE
            ADEQUATELY AT SENTENCING.

      We affirm substantially for the reasons set forth on the record by Judge

Petrolle in his oral decision.    We add only the following brief comments.

Defendant claimed his trial attorney was ineffective in failing to raise mitigating

factor thirteen during sentencing. Mitigating factor thirteen,  N.J.S.A. 2C:44-

1(b)(13), provides, "The conduct of a youthful defendant was substantially

influenced by another person more mature than defendant." This mitigating

factor applies to situations involving a youthful defendant and an older,

influential individual who actively encourages and aids in the crime. See State

v. Megargel,  278 N.J. Super. 557, 563-65 (App. Div. 1995) (describing

defendant as "young, impressionable, trusting, somewhat naïve[,]" and unlikely

to commit the crimes without the influence of someone "more mature" and "who

held a position of authority that defendant respected and indeed relied upon") .




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      Here, defendant was twenty-one years old when he committed the

robbery. In addition, defendant had an extensive juvenile and adult criminal

history prior to the commission of this crime. Further, defendant presented no

proof his father influenced his decision to rob the store. Thus, mitigating factor

thirteen was inapplicable under the circumstances, and defense counsel's failure

to present supporting proofs was not deficient.

      On appeal, defendant claims defense counsel should have presented

information at sentencing regarding defendant's history of substance abuse. We

reject this argument for two reasons. First, substance abuse is not a mitigating

factor under  N.J.S.A. 2C:44-1(b). In addition, defendant was ineligible for drug

court as a result of his conviction for first-degree robbery. See  N.J.S.A. 2C:35-

14(a)(5) and  N.J.S.A. 2C:35-14 (b)(1).         Second, the judge considered

defendant's substance abuse issues based on the information in the pre -sentence

investigation report prepared in connection with the sentencing hearing.

      We agree with the PCR judge defendant failed to make a prima facie

showing of ineffective assistance of counsel under the Strickland/Fritz test. Nor

do we discern an abuse of discretion in the judge's denial of defendant's PCR

petition without an evidentiary hearing. A "[d]efendant must demonstrate a




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prima facie case for relief before an evidentiary hearing is required . . . . " State

v. Bringhurst,  401 N.J. Super. 421, 436 (App. Div. 2008).

      The remainder of defendant's arguments are without sufficient merit to

warrant further decision in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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