Opinion
DOCKET NO. A-5593-13T3
04-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GERROD LITTLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2580. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Gerrod Little appeals from a June 9, 2014 order denying his petition for post-conviction relief (PCR). On appeal, defendant argues:
MR. LITTLE IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ADVOCATE FOR HIM AT SENTENCING.Following review of the record and applicable law, we reject defendant's argument as procedurally barred and lacking merit.
Defendant, charged in a fifteen-count indictment, entered into a negotiated plea agreement. He pleaded guilty to second-degree attempted luring of a minor, N.J.S.A. 2C:5-1 and 2C:13-6 (count one); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts five, as amended, and eight); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(a)(4) (count ten); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count fourteen); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count fifteen).
Sentence was imposed on October 31, 2011. Prior to the judge's determination, defense counsel stated: "Your Honor, my client pled guilty on May 11, 2011 pursuant to a negotiated plea. At this time we would just ask that Your Honor sentence him in accordance with the recommendation of the prosecutor." The judge found applicable aggravating factors one ("[t]he nature and circumstances of the offense"), three ("[t]he risk that the defendant will commit another offense"), and nine ("[t]he need for deterring the defendant and others from violating the law"). N.J.S.A. 2C:44-1(a)(1), (3), (9). The judge found mitigating factors applied. N.J.S.A. 2C:44-1(b). He imposed an aggregate twenty-two-year jail-term, subject to the parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which was the term recommended by the State and set forth in the plea agreement.
Defendant's appeal was placed on this court's excessive sentence oral argument calendar. R. 2:9-11. On August 29, 2012, we affirmed defendant's sentence, stating:
Having considered the record and argument of counsel, and it appearing that the issues on appeal relate solely to the sentence imposed, we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Bieniek, 200 N.J. 601 (2010); State v. Natale, 184 N.J. 458 (2005); State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).
[State v. Little, No. A-003535-11 (App. Div. Aug. 29, 2012), certif. denied, 215 N.J. 485 (2013).]
Defendant filed a petition for PCR, arguing counsel was ineffective. Among the issues presented was counsel's failure to argue at sentencing for application of mitigating factor twelve, "[t]he willingness of the defendant to cooperate with law enforcement authorities," N.J.S.A. 2C:44-1(b)(12). Defendant maintained had factor twelve been considered, the length of his sentence would have been shorter. To support his claim, defendant attached correspondence he sent to the prosecutor advising of his desire "to become a [S]tate informant." In his letters, defendant related comments he overheard while in custody, which he believed were related to crimes and sought to exchange this information for sentencing consideration. On February 18, 2010, in response to his letters, defendant was interviewed by the homicide squad investigators from the prosecutor's office, for a period less than two hours. No subsequent contact occurred and, as noted, there was no mention of defendant's prior or anticipated future cooperation during defendant's subsequent plea and sentencing hearings. The State rejected the defendant's conduct as helpful or satisfying the requirements of mitigating factor twelve.
After reviewing the record, the PCR judge denied defendant's petition, finding insufficient support to grant relief. In an oral opinion, the judge noted defendant's generalized claim of cooperation with the State by seeking to provide "information regarding open homicide cases" was not mentioned in the plea agreement and no evidence "of an alleged cooperation agreement" was presented at any time, making the claim "somewhat speculative." Further, the judge found no evidence demonstrated the sentencing outcome would have been altered had the mitigating factor been weighed.
On appeal from the order denying PCR, defendant again argues counsel's lack of advocacy at sentencing rises to ineffective assistance warranting PCR. We are not persuaded.
To determine whether a defendant has established a prima facie claim for ineffective assistance, we follow the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), under which
[a] reviewing court first must determine whether counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698."The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
[State v. Chew, 179 N.J. 186, 203 (2004).]
Generally, an ineffective assistance of counsel claim "cannot be raised on direct appeal," because a hearing must be held to develop a record whereby trial counsel may "explain the reasons for his conduct and inaction," and a trial judge is afforded the opportunity to rule on the claims and assess the likely prejudice. State v. Preciose, 129 N.J. 451, 462 (1992) (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)); see also State v. McDonald, 211 N.J. 4, 30 (2012) (holding that a PCR "proceeding would be the appropriate forum to evaluate the strategy of defendant's trial counsel . . . and other issues requiring information that is not in the record before the Court").
However, the crux of defendant's PCR assertion, directed to counsel's arguments during sentencing, is the sentence imposed was excessive. This issue may not be the subject of PCR because it is cognizable on direct appeal and defendant should have presented this issue before this court when challenging his sentence. Defendant makes no showing that he could not have presented the instant challenge on direct appeal. Claims which could have been raised on direct appeal are barred from being raised at some later point. See R. 3:22-4. Nevertheless, claims pertaining to ineffective assistance of counsel are more appropriately raised during petitions for PCR, even if they could have been raised on direct appeal. See Preciose, supra, 129 N.J. at 460 (stating ineffective assistance of counsel claims should be entertained despite not being raised "on direct appeal because such claims involve allegations and evidence that lie outside the trial record").
"[W]here mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005). Here, application of factor twelve was not self-evident and no evidence was presented during defendant's plea or sentencing hearing that revealed defendant's "willingness . . . to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12). In light of this requirement, we consider whether defendant has offered prima facie evidence counsel's failure to advance this argument satisfied Strickland.
Mitigating factor twelve has largely been applied to defendants whose cooperation with law enforcement occurred in his or her own prosecution or that of co-conspirators. See, e.g., State v. Jaffe, 220 N.J. 114, 116 (2014) (finding mitigating factor twelve applicable where defendant agreed to "cooperate with the State's prosecution of his co-defendants" in exchange for a favorable plea); Dalziel, supra, 182 N.J. at 505 (providing defendant's truthful testimony regarding conduct of co-defendant was made a condition of the plea agreement). We are inclined to agree a defendant whose aid assists the investigation of unrelated crimes could be considered as providing cooperation to the State, justifying application of mitigating factor twelve at sentencing.
Additionally, it is clear defense counsel retains and has the obligation to exercise the "unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement." State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002). Indeed, the court has found counsel's "failure to present mitigating evidence or argue for mitigating factors was ineffective assistance of counsel--even within the confines of the plea agreement." State v. Hess, 207 N.J. 123, 154 (2011). It is also understood that counsel retains the right to strategically determine the scope of argument based on the circumstances. Most importantly, "a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice." Id. at 173 (quoting State v. Warren, 115 N.J. 433, 447 (1989)).
Turning to the facts presented in this matter, we reject defendant's argument he met this requirement. First, defendant's letters volunteering to be an informant in exchange for a lenient sentence are insufficient proof satisfying a "willingness . . . to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12). If proof of the mitigating factor was so simple, its application would be meaningless.
Second, defendant's assertion of an ability to aid investigation of unsolved homicides was investigated by the State. He was interviewed for approximately one hour and forty-five minutes, at which time he revealed any details of his purported knowledge. Defense counsel learned of this meeting and, based on subsequent correspondence, remained aware of any further contacts with defendant. There were none. All of these events transpired prior to sentencing.
Third, no evidence shows the information defendant imparted was meaningful or actually aided law enforcement; defendant never testified on behalf of the State in any prosecution of any criminal offender. Frankly, a review of the statements recited in defendant's correspondence reflects no direct knowledge of any crimes.
Finally, counsel was aware of these events as well as the positive aspects of the plea offer prior to sentencing. She also understood the State's evidence demonstrated defendant lured, held, and sexually assaulted three minor victims. Counsel was also mindful defendant faced a possible jail term of sixty years and he had earlier made damning statements minimizing the effect of his criminal conduct. In light of these circumstances, counsel's limited remarks at sentencing may be viewed as strategic.
Based on our review, we conclude defendant's self-serving offer of assistance, unaccompanied by actual results yielded from the information disclosed, do not support application of mitigating factor twelve. Further, a review of the sentencing record reveals were this factor applied, it would have little to no impact on the sentence imposed, which directly comported with the State's recommendation stated in the plea agreement.
We conclude the PCR judge appropriately exercised his discretion when denying defendant's request for an evidentiary hearing on his claims and in denying PCR relief. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION