STATE OF NEW JERSEY v. LARRY HILL (2013)

Defendant Larry Hill appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).  We affirm.

A thirty-count indictment charged defendant with various drug crimes, weapons offenses, aggravated assaults, eluding a law enforcement officer and resisting arrest.   Pursuant to an agreement negotiated with the State, defendant pled guilty to second-degree possession of a handgun after having been convicted of robbery, N.J.S.A. 2C:39–7(b)(1) (count three);  second-degree aggravated assault (attempt to cause serious bodily injury), N.J.S.A. 2C:12(b)(1) (count five);  and third-degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35–5(a)(1) and 2C:35–7 (count twenty-eight).   In accordance with the terms of the plea bargain, defendant was sentenced to a five-year term with five years of parole ineligibility on count three;  an eight-year term with eighty-five percent parole ineligibility on count five;  and a five-year term with three years of parole ineligibility on count twenty-eight, with each sentence to run concurrent to the others and concurrent to a violation of parole defendant was then serving.   The remaining counts of the indictment were dismissed as provided in the plea agreement.

We affirmed the judgment of conviction on our Excessive Sentencing Oral Argument (ESOA) calendar.   The Supreme Court denied defendant's petition for certification.  State v. Hill, 204 N.J. 39 (2010).

Defendant filed a timely PCR petition in which he alleged ineffective assistance of counsel.   The sole basis for his claim at the time was that counsel failed to argue that defendant was entitled to jail credits for the eight months he was incarcerated between arrest and sentencing.   The PCR judge denied the petition, finding the claim procedurally barred under Rule 3:22–4 as one capable of being raised on direct appeal, as well as substantively without merit.   As to the latter, the PCR judge concluded:

However, [defendant] was not entitled to credit for custodial time while awaiting sentence since he already had a parole warrant lodged against him.   See State v. Harvey, 273 N.J.Super.   572 (App.Div.1994).   As the record shows, at the time of sentencing[,] defense counsel acknowledged that [defendant] was not entitled to the eight additional months but still directly requested this court to consider granting the time.  (Sentencing transcript, 3:11–17).   Thus, defense counsel cannot be said to have been ineffective for failing to put forth any further arguments on this issue.

On appeal, defendant raises the following issues:

I.  THE PETITION SHOULD BE GRANTED BECAUSE SUFFICIENT FACTUAL BASES WERE NOT ELICITED FROM DEFENDANT AT THE PLEA HEARING FOR ANY OF THE CHARGES.

II. BECAUSE TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD HAVE GRANTED THE PETITION.   IN THE ALTERNATIVE, BECAUSE PETITIONER HAD PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING.

A. Trial Counsel Was Ineffective By Failing To Intervene When Adequate Factual Bases Were Not Elicited At The Plea Hearing.

B. Trial Counsel Was Ineffective By Failing To Present Any Mitigating Factors At Sentencing And By Failing To Argue Against Aggravating Factors Cited By The State At Sentencing.

C. Appellate Counsel Was Ineffective By Failing To Argue That Adequate Factual Bases Were Not Elicited At The Plea Hearing, By Failing to Present Any Mitigating Factors, By Failing To Argue Against Any Aggravating Factors And By Failing To Challenge The Trial Court's Inadequate Explanation Of Its Findings Of Fact At Sentencing.

D. Cumulative Errors By Both Trial And Appellate Counsel Amounted To Ineffective Assistance Of Counsel And The Denial Of A Fair Trial.

E. Alternatively, The PCR Court Should Have Conducted An Evidentiary Hearing On Defendant's Claims.

III. THE PETITION SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.

In essence, defendant argues counsel was ineffective for failing to:  (1) ensure that sufficient factual bases for the pleas were provided;  (2) present mitigating circumstances;  and (3) argue against the aggravating factors cited by the State.   Because these specific claims were never raised before the PCR court, they are not cognizable on appeal.  State v. Walker, 385 N.J.Super. 388, 410 (App.Div.), certif. denied, 187 N.J. 83 (2006).   In any event, they all lack substantive merit.   R. 2:11–3(e)(2).

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial.   See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).   We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland/Fritz test.

The plea transcript demonstrates an adequate factual basis for each of the three charges to which defendant pled guilty.   Specifically, N.J.S.A. 2C:39–7(b) provides that a person “having been convicted in this State or elsewhere of the crime of ․ robbery ․ who purchases, owns, possesses or controls a firearm” is guilty of a crime.   Here, defendant acknowledged on the plea record that he possessed a .380 caliber handgun on June 24, 2008 in Jersey City while operating a motor vehicle and that he knew it was illegal for him to possess that weapon because he had been previously convicted of an indictable offense in this State.   As to the latter, defense counsel, in defendant's presence, stipulated in open court to defendant's prior convictions under two indictments, one of which charged defendant with robbery:

Defense Counsel:  Judge, the defense would stipulate that ․ [w]ith respect to certain persons, Judge, we would acknowledge that according to Count Three of the indictment that Mr. Hill has two prior indictments resulting in a number of different indictable convictions, one Indictment Number 0090–01 of the '06 [term] and also Indictment Number 0950–07 of the 1998 term.

Not only did defendant admit possessing a firearm, but heroin as well, which he intended to distribute to another.   The defense also stipulated that defendant possessed the heroin within 1,000 feet of school property.   And while driving in the area of Wilkinson Avenue and Martin Luther King Drive in Jersey City, with both drugs and a weapon, defendant, by his own admission, fired the gun at residents on a porch, intending to cause one of them serious bodily injury.

Having satisfied the elements for each of the crimes to which he was pleading guilty, defendant provided a sufficient factual basis to support his guilty pleas to possession of a handgun after previously being convicted of robbery, N.J.S.A. 2C:39–7(b)(1);  second-degree aggravated assault by attempting to cause serious bodily injury, N.J.S.A. 2C:12–1(b)(1);  and possession of heroin with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35–5(a)(1) and 2C:35–7.   Therefore, defendant's claim that counsel was ineffective on this score fails.

So too does defendant's claim that counsel was ineffective for failing to present any mitigating factors at sentencing.   The record reveals counsel argued for the only mitigating circumstances available to defendant, namely his youth, remorse and supportive family.   The factors that defendant now argues should have been raised by counsel, namely N.J.S.A. 2C:44–1(b)(4), (7), (8) and (9), are simply not applicable here.   Defendant's troubled childhood and substance abuse are not circumstances tending to justify or excuse his criminal conduct.  N.J.S.A. 2C:44–1(b)(4);  see State v. Ghertler, 114 N.J. 383, 390 (1989).   Moreover, the fact that defendant has had no convictions for a ten-year period following his 1998 conviction for first-degree robbery is a direct result of his incarceration rather than a deliberate choice to lead a law abiding life.   See N.J.S.A. 2C:44–1(b)(7).   And lastly, nothing in the record indicates defendant's present crimes were “the result of circumstances unlikely to recur,” N.J.S.A. 2C:44–1(b)(8), or that he is “unlikely to commit another offense,” N.J.S.A. 2C:44–1(b)(9).   On the contrary, defendant's involvement with the criminal justice system commenced as a juvenile and continued consistently to the present offenses, with his criminal activity interrupted only, in essence, by periods of incarceration.

Defendant's criminal history also supported application of aggravating factors three, six and nine, N.J.S.A. 2C:44–1(a)(3), (6) and (9), against which counsel could not legitimately argue.   Actually, the only aggravating factor that trial counsel could have made a valid argument against was that contained in N.J.S.A. 2C:44–1(a)(1).   But even if defendant's failure to so argue could be said to demonstrate ineffective assistance of counsel, defendant cannot possibly show how he was prejudiced thereby.   As the PCR judge aptly noted in denying defendant relief:

In the instant case, [defendant] was facing a thirty-count indictment which included charges that, if convicted, could have resulted in a significantly longer prison term.  [Defendant] would have faced the possibility of consecutive terms on the narcotics offenses and the possibility that any sentence could be imposed consecutive to his parole violation.   Additionally, [defendant] would have been eligible for an extended term.   Instead [defendant] was sentenced to the minimum sentence on count three, a mid-range sentence on count five and a mandatory sentence on count twenty-eight.   All of [the] terms were set to run concurrently to each other and to the [defendant's] parole violation.  [Defendant] voluntarily agreed to this generous plea bargain and has made no showing to evidence that but for defense counsel['s] actions he would have chosen to advance towards a different outcome.  [Defendant] fails to satisfy the second prong of the Strickland/Fritz test.

We agree.

Defendant's remaining contentions are without sufficient merit to warrant discussion in this opinion.   R. 2:11–3(e)(2).

Affirmed.

PER CURIAM