PER CURIAM.
Defendant Duan D. Howard appeals from the March 25, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On July 14, 2006, defendant was sentenced pursuant to a non-negotiated plea.
The charges arose when defendant, along with three others, robbed two victims at gunpoint. One of the victims was "pistol-whipped."
Defendant was twenty-three years old when sentenced, had no adult prior convictions, but had been adjudicated delinquent on five occasions.
The record indicates that defendant was the last of the group of co-defendants on the indictment who were sentenced that day, one after another. Defense counsel made little comment on defendant's behalf other than repeating his client's request for a lesser sentence, and stating that he had explained to his client that since the judge had denied the similar request made by every other co-defendant on the indictment, he anticipated that the judge would deny this defendant's request as well. With virtually no comment, and without finding any aggravating or mitigating factors, the judge imposed the ten-year sentence. The judgment of conviction nonetheless indicates that aggravating factors three, six, and nine were found and none found in mitigation.
On the PCR motion, defendant raised the same argument now made on appeal: that counsel's failure to argue mitigating factors to the court constituted ineffective assistance of counsel. Defendant contends that, had they been raised to the court, he would have received a sentence in the second-degree range of five to ten years subject to NERA.
In his eight-page written decision, the PCR judge specifically addressed each of defendant's proposed mitigating factors: seven, eight, nine, eleven, and twelve.
On appeal, defendant argues:
To demonstrate ineffective assistance of counsel, a defendant must satisfy the
That the judge was sentencing defendant in accord with a plea, non-negotiated or not, did not relieve him of the obligation to make the findings required in every sentencing proceeding.
It cannot be disputed that the sentence hearing in this case fell short of the requirements of our rules and relevant caselaw. Counsel proffered little information about defendant, no comment on the presentence report, and virtually no argument with regard to the imposition of sentence. When asked if he had anything he wished to add, defendant said only "I don't have anything to say." Likewise, the judge said little other than to note that all the co-defendants "c[a]me from good families." He made no findings as to aggravating and mitigating factors. Despite these disturbing omissions, however, defendant faces the insurmountable problem that the record does not support his assertion that had mitigating factors been argued to the court, he would have been sentenced to a lesser term.
Obviously, defendant failed in his direct appeal to establish any basis for the mitigating factors that are now being raised for our consideration. Nor was any additional information provided to the PCR judge to support the proposed factors, by way of certification or some other documentation. Similarly, on appeal, counsel does not direct our attention to anything in the record that supports any mitigating factor.
In this case, the State offered defendant a negotiated plea to thirteen years, subject to NERA, concurrent, for an armed robbery involving two victims. The judge indicated he would impose a lesser sentence, ten years, and did so. Ten is the lowest number of years of imprisonment that can be imposed on a first-degree crime and, in our view, is a very favorable sentence given the circumstances of the offense involving one robbery but two victims facing a number of assailants, at least one of whom wielded a handgun.
As a result, we can only conclude that defendant's unsupported allegations are the equivalent of "bald assertion[s]."
A reduction to a lesser term, one in the second-degree range, would have required the judge to be clearly convinced that the mitigating factors substantially outweighed the aggravating.
Thus counsel's failure to argue mitigating factors does not compel us to conclude his attorney was ineffective. Counsel's assistance was within the range of competence demanded of attorneys in criminal cases in the narrow sense that his failure to argue mitigating factors was explained by the lack of support for them.
Furthermore, nothing in the record convinces us that but for the expectation of a sentence in the second-degree range, to less than ten years, defendant would have proceeded to trial. With his attorney's assistance, defendant was able to obtain from the judge a sentence to three years less than was offered by the State. Given that this is a NERA sentence, that three-year difference was a substantial benefit. Having concluded that defendant's claims are nothing more than unsupported bare allegations, we affirm the judge's denial of any relief, including an evidentiary hearing.
Affirmed.