STATE OF NEW JERSEY VS. DAVID W. GRAHAM (14-01-0015, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5877-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID W. GRAHAM, a/k/a
QUINTON PRICE, LEON
COLEMAN, DARELL GRANT,
DAVID GRANT, ALBERT
JOHNSON, JAMES D. JONES,
ANDRE MC DOWELL, ANDRE
PRICE, DARRELL ROGERS,
EUGENE HILL, PRICE QUINTON,
DAVID WILLIAMS, DARELL
ROGERS, and TIQUAN JONES,
Defendant-Appellant.
_________________________________
Submitted September 12, 2019 – Decided September 20, 2019
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-01-0015.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Reana Garcia, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, David Graham, appeals from an order that denied without an
evidentiary hearing his first petition for post-conviction relief. He argues a
single point:
THIS MATTER SHOULD BE REVERSED AND
REMANDED TO THE PCR COURT FOR AN
EVIDENTIARY HEARING AS IT WAS NOT
ADDRESSED WHY TRIAL COUNSEL FAILED TO
CHALLENGE AGGRAVATING FACTORS OR
RAISE MITIGATING FACTORS WHICH WOULD
HAVE REDUCED DEFENDANT'S SENTENCE
EXPOSURE.
We affirm, substantially for the reasons expressed by Judge John M.
Deitch in his February 12, 2018 written opinion. We add the following
comments.
After a grand jury charged defendant in a five-count indictment with first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) and (2), first-degree
death by auto, N.J.S.A. 2C:11-5(b)(3), second-degree eluding, N.J.S.A. 2C:29-
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2(b), and third-degree receiving stolen property, N.J.S.A. 2C:20-7, he negotiated
a plea. Defendant pled guilty to second-degree death by auto in exchange for
the State's agreement to dismiss the remaining charges and recommend the
maximum sentence of ten years, subject to the No Early Release Act, N.J.S.A.
2C:43-7.2. During the plea hearing, Defendant admitted to the following:
driving a pick-up truck while under the influence of heroin and cocaine,
speeding to elude police, continuing to speed after the police stopped chasing
him, and crashing into a pole and guardrail. The pick-up's passenger,
defendant's girlfriend, died in the crash.
The trial court sentenced defendant in accordance with the plea.
Defendant did not appeal. Two years and two months after being sentenced,
defendant filed his PCR petition.
Following briefing and oral argument, Judge Deitch issued a written
opinion in which he rejected defendant's claim that his sentence was illegal.
Judge Deitch explained the difference between an illegal sentence on one hand
and an excessive sentence on the other, determined defendant's claim was that
his sentence was excessive, and rejected that claim as procedurally barred,
defendant having failed to raise it on direct appeal.
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The judge nonetheless considered the substance of the petition and
determined defendant had not established a prima facie ineffective-assistance-
of-counsel claim. Defendant had claimed his counsel was ineffective for failing
to argue more strenuously at sentencing for mitigating factors and failing to
object to the trial court's allegedly improper consideration of aggravating
factors. As Judge Deitch noted, the trial court's sentencing decision, including
its evaluation of aggravating and mitigating factors, was amply supported by the
record.
Our review of the sentencing record leads us to agree entirely with Judge
Deitch. We add only that defendant's speculative assertions about what might
have happened had his counsel made different or more strenuous arguments are
insufficient to establish an ineffective-assistance-of-counsel claim. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's arguments
are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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