Opinion
DOCKET NO. A-3993-11T3
07-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NEIL HUNTER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs). Warren W. Faulk, Camden County Prosecutor, Attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fuentes.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-02941.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).
Warren W. Faulk, Camden County Prosecutor, Attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Neil Hunter appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On June 15, 2007, defendant pleaded guilty to five counts of first degree armed robbery, contrary to N.J.S.A. 2C:15-1. The factual basis provided by defendant at his plea hearing established that he used a fake, yet realistic-looking handgun to rob three individuals on three separate occasions in September 2005; he used the same fake weapon to rob two individuals during a single incident in June 2005; and he committed his fifth first degree robbery in May 2005, this time while armed with a real firearm. The fifth robbery was committed in a single incident against two victims.
On August 29, 2007, the trial court sentenced defendant, pursuant to a comprehensive plea agreement, to five concurrent terms of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This resulted in an aggregate term of twenty years, subject to the parole restrictions required by NERA. Most significantly from defendant's perspective, the sentence imposed by the trial court in this State would also run concurrently to a sentence defendant was serving at the time for a crime he committed in Pennsylvania.
Because defendant was already on probation for an unrelated offense when he committed these five first degree robberies, the trial court also imposed a concurrent three-year term for violating the terms of his probation.
Defendant appealed the sentence through the summary process provided by Rule 2:9-11. At oral argument, defendant's appellate counsel argued that the sentencing judge erred in not considering mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), defendant's cooperation with the State in identifying his codefendants. Counsel also emphasized that defendant committed four out of the five robberies with a "toy gun." According to defendant's appellate counsel, that made defendant's offenses "less serious than other armed robbery offenses in the class." Counsel concluded his argument by noting that defendant had "a fairly good work history having worked at a nursing home for four years."
After considering these arguments, we affirmed the sentence imposed by the trial court. State v. Hunter, No. A-2190-07 (App. Div. Nov. 18, 2009). The Supreme Court thereafter denied defendant's petition for certification. 201 N.J. 273 (2010).
Defendant filed this pro se PCR petition on February 1, 2010, alleging ineffective assistance of trial counsel. Specifically, defendant claimed that his assigned trial counsel failed to raise appropriate mitigating factors before the sentencing court. Defendant was assigned counsel to prosecute the PCR petition. The matter came for oral argument before the PCR court on December 9, 2011. After considering the arguments of counsel, the PCR court denied defendant's petition.
The PCR judge found that, even if trial counsel erred by not arguing that the sentencing judge find certain mitigating factors, this ostensible defect was cured by defendant's appellate counsel, who, as the record shows, vociferously argued for this court to reverse the trial court for failing to find specific mitigating factors. By affirming the sentence imposed by the trial court on direct appeal, the PCR judge found that this court rejected any implication that defendant's record supported finding any mitigating factors or that that sentence was otherwise excessive. In this light, the PCR judge found defendant was procedurally barred under Rule 3:22-5 from rearguing an issue that was previously adjudicated and rejected on the merits.
Although this conclusion was legally sufficient to dispose of defendant's petition, the PCR judge also rejected defendant's argument based on the Supreme Court's holding in State v. Hess, 207 N.J. 123 (2011). In Hess, the defendant was contractually precluded from arguing for a lesser sentence under the terms of the plea agreement with the State. 207 N.J. at 130. The Hess Court granted the defendant's PCR petition and invalidated any provision in the plea agreement that would restrict defense counsel from zealously arguing for a lesser sentence, consistent with the rules of professional conduct. Ibid. Writing for the majority of the Court, Justice Albin noted as follows:
A plea agreement that prevents a defense attorney from presenting or arguing mitigating evidence to the sentencing court deprives the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors. The unhindered adversarial process at sentencing allows the court to be fully informed about all the evidence and factors that will lead to a just sentence. A lopsided presentation by the State, and the virtual gagging of defense counsel, does not accomplish that goal.
[Id. at 154.]
By contrast, the plea agreement negotiated by defense counsel and entered into by defendant here did not contain any kind of "gag" or restriction on counsel's right to argue for a lesser sentence or present grounds to the sentencing court for finding any mitigating factor.
Against this record, defendant now appeals, raising the following arguments:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel's Failure to Raise any Mitigating Factors at Sentencing Constituted Ineffectiveness of Counsel.POINT II
B. Trial Counsel Misinformed Defendant Regarding a Material Term of the Plea Agreement.
C. The "Gag Rule" Restricting the Presentation of Mitigating Factors by Defense Counsel Found by the Post-Conviction Relief Court to be a Practice in Camden County Constituted an Impermissible Constraint on the Sentencing Discretion of the Trial Court.
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF EFFECTIVENESS OF TRIAL COUNSEL.
We reject these arguments and affirm substantially for the reasons expressed by Judge Michael J. Kassel, as reflected in his oral opinion rejecting defendant's PCR petition, delivered from the bench on December 9, 2011.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION