Opinion
DOCKET NO. A-1632-13T4
07-08-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARQUISE E. HOWARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-03-0201. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Marquise Howard appeals from the denial of his petition for post-conviction relief (PCR) without oral argument. Upon our review in light of the record and governing law, we affirm.
In 2008, defendant pleaded guilty to first-degree carjacking, N.J.S.A. 2C:15-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of cocaine in a school zone with intent to distribute, N.J.S.A. 2C:35-7. Pursuant to his negotiated plea agreement, defendant was sentenced to twelve years' incarceration on the carjacking charge, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, as well as lesser concurrent terms on the remaining counts. At the sentencing hearing, defense counsel requested a lesser sentence in light of defendant's difficult upbringing, his inebriation at the time of the carjacking, the fact he was a juvenile when he committed the charged offenses and his promise as an artist and designer. Ultimately, the sentencing judge rejected these arguments and found no mitigating factors.
Defendant did not appeal his sentence. However, he filed a pro se PCR petition arguing he was denied effective assistance of counsel because of trial counsel's inadequate investigation. After being assigned counsel, defendant amended his petition to allege ineffective assistance of counsel for failure to specifically argue mitigating factors at the sentencing hearing. Additionally, the amended petition contended the sentencing judge erred in disregarding such mitigating factors that were "amply grounded in the record," specifically:
(3) The defendant acted under a strong provocation; (4) There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense; (8) The defendant's conduct was the result of circumstances unlikely to recur; (9) The character and attitude of the defendant indicate that he is unlikely to commit another offense; (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents; and (12) The willingness of the defendant to cooperate with law enforcement.
[See N.J.S.A. 2C:44-1(b).]
By way of written order, the PCR judge denied defendant's petition without oral argument. The judge concluded, contrary to defendant's assertions, trial counsel did in fact argue certain mitigating factors, which were in turn considered by the sentencing court. The judge concluded defendant failed to state a prima facie claim for ineffective assistance of counsel and his petition was, in fact, "essentially asking the [PCR] [c]ourt to reconsider [his] sentence." In so ruling, the judge concluded oral argument was unwarranted.
We note that the PCR judge also presided over defendant's plea and sentencing hearings. --------
On appeal, defendant argues that the PCR court precipitously ruled on the petition without oral argument, citing State v. Parker, 212 N.J. 269, 283 (2012), which held, as did our earlier decision in State v. Mayron, 344 N.J. Super. 382, 386-87 (App. Div. 2001), that "there is a strong presumption in favor of oral argument in connection with an initial petition for [PCR]."
"'[PCR] is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). New Jersey has adopted the two-prong test for ineffective assistance of counsel promulgated by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland,
to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove . . . that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result."A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.
[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) (citing Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; Preciose, supra.
129 N.J. at 459; Fritz, supra, 105 N.J. at 58).]
Although, as defendant submits, "there is a strong presumption in favor of oral argument in connection with an initial petition for [PCR]," Parker, supra, 212 N.J. at 283, ultimately, "the decision whether to grant oral argument . . . rest[s] 'within the sound discretion of the [PCR] court.'" Id. at 281 (quoting Mayron, supra, 344 N.J. Super. at 386-87). In deciding whether to dispense with oral argument, the PCR judge should weigh: "'the apparent merits and complexity of the issues . . ., whether argument of counsel [would] add to the written positions . . ., and, in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument.'" Id. at 282 (alterations in original) (quoting Mayron, supra, 344 N.J. Super. at 387). "[W]hen the [] judge does reach the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Ibid.
Here, in denying defendant's petition, the PCR judge found defendant's arguments entirely meritless in light of the fact trial counsel "did argue the mitigating factors, including the defendant's age, intoxication, difficult upbringing and status as a juvenile" at the sentencing hearing. Similarly, the judge found the sentencing court considered "aggravating factors that included the seriousness of the crime and the fact that [] defendant was out in violation of a [c]ourt order at the time the crime was committed." As such, the judge concluded oral argument was "unlikely to meaningfully add to the briefs" and was therefore unwarranted.
Defendant, in effect, contends the PCR court erred by not affording him oral argument because oral argument would have allowed him to demonstrate his attorney failed to argue for the mitigating factors at sentencing. We note defendant's sentencing arguments are not appropriate for PCR because they could have been, but were not, raised on direct appeal. R. 3:22-4(a). Only illegal sentences, not allegedly excessive sentences within legal limits, are appropriate for PCR. State v. Acevedo, 205 N.J. 40, 45-46 (2011); see also State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988) (noting that a claim that a sentence is excessive, rather than beyond or inconsistent with legal constraints, is not an appropriate ground for PCR and can be raised only on direct appeal from the conviction), certif. denied, 115 N.J. 78 (1989).
In any event, defendant has not shown that he was denied the effective assistance of counsel because his attorney failed to argue for certain mitigating factors at sentencing. Counsel argued for a lesser sentence than the negotiated term and raised several mitigating factors. Defendant has not shown it was reasonably probable the sentencing judge would have found any of the mitigating factors if defense counsel had raised these issues. Defendant has also not demonstrated that, even if the court had found any of the mitigating factors, it would have favorably affected his negotiated sentence.
Because the PCR judge's order was specifically tailored to defendant's arguments and the sentencing record, the PCR judge complied with Parker's mandate for "a statement of reasons that is tailored to the particular application." Ibid. Therefore, the PCR judge did not abuse his discretion and we conclude that oral argument would not have assisted defendant in establishing that he was denied the effective assistance of counsel at sentencing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION