STATE OF NEW JERSEY v. JOSE CEDENO (2013)

Defendant Jose Cedeno appeals from the January 2011 order denying his petition for post-conviction relief (PCR).  We conclude the following:  (1) defendant's petition was properly barred, and therefore denied, pursuant to Rule 3:22–4;  (2) despite the procedural bar, defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel based on her alleged failure to request specific mitigating factors and argue for a sentence less than the negotiated plea;  and (3) defendant failed to establish any cumulative error effect in the case.   Additionally, the claims asserted against PCR counsel are similarly rejected.

The facts as adduced from the record reveal that between June 29, 2002, and November 5, 2003, defendant had vaginal intercourse with M.P., his sister-in-law, who he knew to be less than thirteen years old at the time.

On April 19, 2005, defendant was charged with three counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14–2(a)(1) (counts one, two and three);  two counts of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24–4(a) (counts four and eleven);  three counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14–2(a)(2)(a), (counts five, six and seven);  and three counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14–2(c)(4) (counts eight, nine and ten).

On June 27, 2005, before Judge Thomas Smith, defendant entered a guilty plea as to count one of the indictment.   In exchange for defendant's guilty plea, the State agreed to recommend that any sentence of incarceration be a maximum of ten years with an eighty-five-percent parole disqualifier of eight years, six months, and two days, in connection with the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2(a).   In addition, the State agreed to dismiss the remaining counts of the indictment.   However, all the provisions of Megan's Law ¹ applied, including community supervision for life (CSL).

On October 7, 2005, defendant appeared before Judge Smith for sentencing.   Defendant was sentenced to a term of ten years in prison, with a parole disqualifier of eighty-five percent.

Defendant did not file an appeal.   On February 26, 2010, defendant filed a timely pro se PCR petition claiming ineffective assistance of counsel at the time of sentencing.   Appointed PCR counsel submitted an amended petition and letter brief on November 18, 2010.   The State filed its responsive brief on December 23, 2010.   Oral argument was held before Judge Michael J. Haas on January 28, 2011.   In a written opinion dated January 31, 2011, the judge denied the petition.

First, the judge found that the ineffective assistance of plea counsel claim, based on defendant's allegation that trial counsel failed to request specific mitigating factors and failed to seek a lesser sentence than the negotiated plea agreement, should have been raised in a direct appeal to the Appellate Division.   Due to his failure to do so, the PCR judge found that defendant's petition was barred, and therefore denied, under Rule 3:22–4.   Next, the PCR judge concluded that defendant's contentions that trial counsel failed to argue these two matters at sentencing were insufficient to satisfy the first Strickland ² prong.   In each instance, he noted that there was nothing in the record that substantiated the claim.   On the contrary, the judge noted that the “sentence obviously took into account defendant's lack of a prior record” as offered by defense counsel, “and [that] Judge Smith specifically noted mitigating factor [seven] in his sentencing decision.”   The PCR judge found that defendant failed to identify any additional mitigating factors that trial counsel could have properly asserted.   Further, defendant failed to provide any basis for his claim that a lower sentence could have been considered.   Based on those findings, the judge determined that defendant had not established a prima facie case of ineffective assistance of counsel under the Strickland test justifying an evidentiary hearing, as defendant's petition failed to raise any claims that could not be resolved by referencing the record.

Lastly, the PCR judge rejected defendant's argument that the cumulative errors of his trial counsel warranted PCR. On this point, the judge ruled that the only asserted errors were the two that the court had addressed, so there was no “ ‘cumulative error effect’ in this case.”   This appeal followed.

Defendant raises the following issues on appeal:

I.  THE PROCEDURAL BAR OF R[ULE] 3:22–3 3  SHOULD NOT BE APPLIED TO DEFENDANT'S [PCR].

II. DEFENDANT'S PETITION FOR [PCR] SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.  [Not raised below]

III.  THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCE HEARING AS A RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT HIS SENTENCE HEARING.

IV. THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We have considered the record and affirm for the reasons set

forth in Judge Haas's well-reasoned written opinion.   We add only the following.

Defendant's claim of sentencing counsel's ineffectiveness for failing to present additional mitigating factors, failure to challenge the court's application of aggravating factor two and failing to adequately argue for a sentencing downgrade, amount to no more than an excessive sentencing argument cloaked in “ineffective assistance of counsel” language.   Such excessive sentencing claims, however, are not cognizable on PCR review.   Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22–2 (2013);  State v. Acevedo, 205 N.J. 40, 45–46 (2011).   These claims are appropriately procedurally barred in this matter as capable of having been so raised pursuant to Rule 3:22–4.   In any event, even if properly cognizable, we are persuaded that all of the alleged deficiencies clearly fail to meet the Strickland test.   The claims now being made would not have resulted in a different, more favorable outcome for defendant, and none required an evidentiary hearing.

We are satisfied that defendant's remaining arguments do not warrant discussion in this opinion.   R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

FN1. N.J.S.A. 2C:7–1 to –23..  FN1. N.J.S.A. 2C:7–1 to –23.

FN2. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1974) (stating that (1) “defendant must show that counsel's performance was deficient;” and (2) “the deficient performance prejudiced the defense”);  see also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland standard in New Jersey)..  FN2. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1974) (stating that (1) “defendant must show that counsel's performance was deficient;” and (2) “the deficient performance prejudiced the defense”);  see also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland standard in New Jersey).

FN3. We note that the PCR judge barred the petition under Rule 3:22–4..  FN3. We note that the PCR judge barred the petition under Rule 3:22–4.

PER CURIAM