NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Lizcett Almodovar appeals from the dismissal of her petition for post-conviction relief (PCR), in which she had argued that her defense attorney provided ineffective assistance of counsel at her sentencing hearing. We affirm.
I.
In December 2004, Almodovar was charged in nine out of twelve counts of an indictment arising out of the robbery of a taxi company at which she had once been employed. During the robbery, the owner of the cab company was fatally shot by one of Almodovar's co-defendants.
On May 2, 2005, pursuant to a plea agreement, Almodovar pled guilty to a single count of first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a).1 As part of the agreement, the prosecutor agreed to recommend an eighteen-year period of incarceration, with an eighty-five percent period of parole ineligibility. Almodovar also entered into a cooperation agreement with the State. The remaining counts were to be dismissed at the time of sentencing.
At the plea hearing, the judge went through the plea agreement and satisfied himself that Almodovar understood her rights, the terms of the agreement, and the consequences of the plea. He also asked defense counsel to establish the factual basis of the plea with his client. Almodovar testified that she meet with the co-defendants on November 17, 2003. She understood that they wanted to rob the office of the cab company where she used to work. She assisted one of the co-defendants in drawing a diagram of the office. She told them where the company's cash was stored and that they could expect to find approximately $3000.
Almodovar subsequently met the co-defendants near the cab company's office. She and a female co-defendant went into the office, and she asked for payment for the last week she had worked there. After she and the co-defendant left, they met the others and two male co-defendants entered the office. After the two men went into the office, Almodovar's female co-defendant informed her that one of the men was carrying a "burner," which she later learned referred to a gun.
Based upon his examination of Almodovar and the factual basis adduced by defense counsel, the judge concluded that she entered into the plea "knowingly, intelligently and voluntarily." He also concluded that there was a factual basis for the plea.
Almodovar appeared for sentencing on June 24, 2005. Although she was represented by the same defense attorney who had appeared at the plea, he did not address the judge with respect to aggravating and mitigating factors, nor did he argue that a sentence below the eighteen years mentioned in the plea agreement should be imposed. Instead, he relied solely on a letter Almodovar had written to the judge.2 Almodovar did address the judge, expressing remorse for her participation in the robbery.
The judge made the following findings with respect to the aggravating and mitigating factors.
All right. Ms. Almodovar, to say that this is tragic doesn't begin to describe what occurred here.
A man who was obviously someone who was a very productive member of society, someone who was running a business that was a service to many people, someone who was an individual, who was certainly an inspiration to the members of his family is gone and you played a very, very significant role in creating the circumstances that led to his murder.
And, while I understand the regret, I understand the concept of penance, I understand the concept that you made a mistake, those things are all real insofar as your thinking, and I don't for a moment conclude that you're not sincere in those thoughts, but one can only conclude that that mistake couldn't have been bigger. And, when you call it a mistake, I don't think it fully describes it, because there was a consciousness of what you were doing.
I know that you hoped for a robbery and not a death in connection with this. I know that the intent was money. But there was a chain of activities or a chain of events that was set in motion by you and I find that there had to be a very clear awareness because as these . . . matters moved forward, it was clear that there was a gun involved, . . . it was clear that there were the very risks of death that actually came to fruition here.
So, though I understand your position, I find that there was a . . . very, very conscious level of reasoning on your part.
And I also note that you strike me as someone who is intelligent, someone who is thoughtful and someone who had the clear capacity to assess what was going on here, and what the consequences were.
You're young, but not incredibly young; you're twenty-three years old, and amongst other things certainly you've referenced the fact that you have a daughter and that your daughter now is being taken care of, as I understand it, by your aunt. She's been adopted by your aunt.
But one of the things that's clear to me is this, that when someone has a child and someone then engages in these actions, someone recognizes what it is therefore to cause someone else to lose a parent, to lose someone they love. And, in a sense, it makes it hard to understand and comprehend how you can move forward with these events.
Ma'am, I've looked at the presentence report and I find these aggravating factors:
There is a risk that you'll commit another offense and there's a need to deter you and others from violating the law.
As to mitigating factors, I do find that you do not have a history of prior delinquency, and I find that the absence of that prior delinquency is something that was appropriately factored into the sentence that was agreed upon.
I find also based upon the cooperation agreement that has been signed in this case —and I understand that it has been signed?
[ASSISTANT PROSECUTOR]: That is correct, Judge.
THE COURT: That that represents a willingness to cooperate with law enforcement officials. And I, therefore, find that the original murder charge here that was amended to set forth an aggravated manslaughter charge and again the sentence of eighteen years, 85 percent to be served without eligibility for parole, appropriately takes into account these two mitigating factors, it takes them into account appropriately.
Weighing these aggravating and mitigating factors, however, I do find that the crassness that's evident in this . . . crime rather represents really the very risk that you will and do have the capacity to commit another crime. And I do find that the risk must be weighted heavily, and I do find that the need for deterrence must be weighed heavily, and, I do find, therefore, that the aggravating factors outweigh the mitigating factors.
This was a negotiated plea, however, and I do find that it factors all of these issues appropriately and I do intend to, therefore, accept the negotiated plea agreement.
. . . .
Ma'am, the agreement, therefore represents as I've said a fair and reasonable disposition. It's in the interest of justice, and it accomplishes the need for punishment, deterrence and recognizes your prospects for rehabilitation.
It's going to result, therefore, in an eighteen-year sentence that would allow for you to be eligible for parole after fifteen years, three months, nineteen days.
He then imposed the sentence recommended in the plea agreement, eighteen years with eighty-five percent parole ineligibility, along with the required fines, penalties, and other statutory requirements.
In October 2006, well over a year after sentencing, Almodovar sought leave to file a notice of appeal as within time. Although a notice of appeal was subsequently filed, it was eventually dismissed for reasons that are not clear from the record.
Almodovar filed a pro se PCR petition on September 13, 2007. Counsel was assigned to represent her, and a formal brief was filed in February 2008. Almodovar argued that there was an insufficient factual basis for the plea and that she was deprived of the effective assistance of counsel with respect to the plea and at her sentencing.
On December 19, 2008, a different judge heard oral argument on the PCR application, after which he reserved decision. The judge issued a written opinion on December 24, 2008. He concluded that the issue of the factual basis for the plea should have been raised on direct appeal, and was consequently barred by Rule 3:22-4. He further concluded that Almodovar failed to set forth a prima facie case for ineffective assistance of counsel. An order dismissing the petition was entered the same day. This appeal followed.
II.
On appeal, Almodovar raises the following arguments:
POINT ONE: 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 [HER] SENTENCE HEARING.
POINT TWO: THE INCLUSION OF INVESTIGATION REPORTS GENERATED BY THE STATE IN DEFENDANT'S PRESENTENCE REPORT WITHOUT DEFENDANT'S CONSENT, VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY, AND STATE V. NATALE, AND REQUIRES A REMAND FOR A NEW SENTENCE HEARING (NOT RAISED BELOW).
POINT THREE: THE PCR COURT CORRECTLY OVERRULED THE STATE'S ARGUMENT THAT DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS PROCEDURALLY BARRED BY R. 3:22-3 OR 3:22-4.
POINT FOUR: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J, at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J, at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "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 two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J, at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
III.
For the purposes of this appeal, we will assume that defense counsel's failure to address the sentencing judge with respect to the aggravating and mitigating factors or the length of the sentence satisfies the first prong of the Strickland test. We nevertheless agree with the PCR judge that Almodovar has failed to satisfy the second prong.
On appeal, Almodovar argues her trial counsel failed to articulate mitigating factors that would have been applicable.
The available factors were:
(1) The defendant's conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm;
(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;
(5) The victim of the defendant's conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(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;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment;
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;
(12) The willingness of the defendant to cooperate with law enforcement authorities;
(13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.
[N.J.S.A. 2C:44-1(b).]
The sentencing judge applied factors (7) and (12). Factors (1) through (6) and (13) were clearly inapplicable. The judge's determination that aggravating factors (3) and (9), N.J.S.A. 2C:44-1(a)(3) and (9), were applicable, which was supported by the record, negates the applicability of mitigating factors (8), (9), and (10). That leaves mitigating factor (11). While the judge did discuss Almodovar's young child, who had been adopted by an aunt, he did not find it as a mitigating factor. That decision was supported by the record. Even if applicable, however, it would not have overcome the strong presumption of incarceration for a first-degree crime.
The crime for which Almodovar was being sentenced was first-degree aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1), which has a sentencing range of ten to thirty years pursuant to N.J.S.A. 2C:11-4(c). The sentence imposed, which was consistent with the plea agreement, was eighteen years, well below the midpoint of the applicable range. The record reveals significant evidence that would have subjected Almodovar to a conviction for felony murder, N.J.S.A. 2C:11-3(a)(3), which would have carried a sentence of at least thirty years without parole under N.J.S.A. 2C:11-3(b). Consequently, our review of the record leads us to conclude that there is no "reasonable probability" that, even if the sentencing judge had applied mitigating factor (11) and defense counsel had argued for a lesser sentence, the judge would have imposed one.
Having reviewed Almodovar's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We make the following brief comments.
An evidentiary hearing is only required to resolve issues of fact when there has been a prima facie showing of ineffective assistance of counsel. Preciose, supra, 129 N.J, at 462-64. No such showing was made in this case.
In an argument not raised in the trial court, Almodovar argues that the judge's access to investigative materials and a prior statement of the victim's son requires resentencing under State v. Natale, 184 N.J. 458 (2005). We are satisfied that Natale is not applicable in this case and that, even if it were, there has been no showing of a Natale violation. Her related arguments are also without merit.
Affirmed.
