STATE OF NEW JERSEY VS. MELVIN M. SOLOMON (10-10-1103, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-2271-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN M. SOLOMON,
Defendant-Appellant.
__________________________
Submitted January 23, 2019 – Decided February 4, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 10-10-
1103.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel;
William P. Welaj, on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Melvin M. Solomon appeals from a November 14, 2017 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
On January 15, 2010, defendant entered Beneficial Bank in Cinnaminson
Township wearing a gas mask and demanded money from a teller in a
threatening manner. After the teller gave him the money, defendant fled the
bank but later surrendered to the police after a warrant was issued for his
arrest.
In an October 26, 2010 indictment, defendant was charged with one
count of second-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count one), and one
count of the first-degree offense of employing a juvenile in the commission of
a crime, N.J.S.A. 2C:24-9(a) (count two). On the first day of trial, the court
granted the State's motion to dismiss count two, and defendant pled guilty to
count one pursuant to an "open plea," which was not conditioned on his
acceptance and entry into the Drug Court program.1
Sentencing was delayed to permit defendant to apply for entry into the
Drug Court program. After the court affirmed defendant's denial into the
1
An "open plea" is a plea "that d[oes] not include a recommendation from the
State, nor a prior indication from the court, regarding sentence." State v.
Kates, 426 N.J. Super. 32, 42 n.4 (App. Div. 2012)(citation omitted).
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program, defendant appeared for sentencing. At sentencing, defendant's trial
counsel represented that the presentence report was accurate, with the
exception of a jail credit issue. However, the presentence report erroneously
stated that defendant was found guilty of robbery in the Philadelphia Court of
Common Pleas in 1993. The disposition sheet from that court confirmed that
defendant actually was found guilty of terroristic threats, but was found not
guilty of the robbery charge.
Counsel argued that mitigating factors seven (no history of criminal
activity or led a law-abiding life for a substantial period before offense) and
ten (particularly likely to respond affirmatively to probationary treatment),
N.J.S.A. 2C:44-1(b)(7) and (10), applied. He explained that defendant had
lived a substantially law-abiding life, but had suffered from a serious cocaine
addiction at the time of the robbery. He also noted that defendant, a veteran,
had previously complied with treatment for post-traumatic stress disorder
(PTSD).
The court found that aggravating factors three (risk of reoffending), six
(extent of prior criminal record and seriousness of the offenses), and nine
(need for deterrence), N.J.S.A. 2C:44-1(a)(3), (6), (9), applied. It also agreed
with defense counsel that mitigating factors seven and ten applied, and
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recognized defendant's PTSD, substance abuse issues, prior service with the
City of Philadelphia Fire Department, and his honorable discharge from the
United States Marines Corps. It further found mitigating factor six (defendant
will compensate the victim), N.J.S.A. 2C:44-1(b)(6), applied since defendant
was ordered to pay restitution to the bank.
After balancing the aggravating and mitigating factors, the court
concluded that the aggravating factors outweighed the mitigating factors. The
court sentenced defendant to six years in state prison with an 85% parole
disqualifier, and three years parole supervision upon release. Defendant was
also ordered to pay fines, penalties, and restitution in the amount of $6272 to
Beneficial Bank.
Defendant appealed his sentence. We affirmed the court's decision to
deny defendant's entry into the Drug Court program, but remanded for
resentencing because the court's findings on aggravating factor six and
mitigating factor seven were "facially irreconcilable," and because mitigating
factor ten was "not applicable as a matter of law" since "defendant was
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sentenced to prison for a crime that has a presumption of incarceration." State
v. Solomon, No. A-4402-14 (App. Div. Oct. 28, 2015).2
At resentencing, the court reduced defendant's custodial sentence from
six years to five years, with an 85% parole disqualifier. The court found that
aggravating factors three and nine applied, but that aggravating factor six was
inapplicable since defendant had not been convicted of robbery in
Pennsylvania. It also found that mitigating factors six and seven applied, but
that mitigating factor ten did not.
Defendant again appealed his sentence and we affirmed, but remanded
for the "entry of a corrected judgment of conviction to include the proper
number of jail credits . . . and/or gap-time credits . . . ." State v. Solomon, No.
A–2022-15 (App. Div. May 4, 2016). The Supreme Court denied defendant's
petition for certification on June 3, 2016. State v. Solomon, 226 N.J. 212(2016). On June 10, 2016, defendant's judgment of conviction was amended to
reflect his entitlement to 212 days of jail credits and 329 days of service credit.
2
Our October 28, 2015 order, and the Supreme Court's June 1, 2016 order
denying certification, incorrectly spelled defendant's surname as Soloman.
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Defendant filed a timely pro se PCR petition on January 18, 2017. In
July 2017, assigned counsel filed an amended petition and a brief, and
defendant submitted a certification in further support of his petition.
PCR counsel maintained that defendant received ineffective assistance
of counsel at sentencing because trial counsel failed to investigate and raise
mitigating factors four (substantial grounds tending to excuse or justify
defendant's conduct), eight (defendant's conduct resulted from circumstances
unlikely to recur), nine (defendant's character and attitude indicate he or she is
unlikely to commit another offense), and ten, N.J.S.A. 2C:44-1(b)(4), (8), (9),
(10). PCR counsel further asserted that trial counsel should have submitted
defendant's medical records and letters from friends and family concerning his
good character to the sentencing court.
Although he had signed a release form, defendant certified that he did
not know if counsel obtained his medical records, and that counsel "never
discussed the possibility of presenting mitigating evidence to the court" with
him. Finally, PCR counsel maintained an evidentiary hearing was warranted
to address counsel's ineffective representation.
After hearing oral arguments, the court reserved decision. On November
14, 2017, Judge Philip E. Haines, who presided over both sentencing hearings,
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rendered a nine-page written opinion and order and concluded that defendant
failed to satisfy either prong of the two-part test for ineffective assistance of
counsel detailed in Strickland v. Washington, 466 U.S. 668 (1984), and
adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42(1987), and denied his request for an evidentiary hearing.
The court concluded that although counsel did not specifically identify
mitigating factors four, eight, and nine, trial counsel brought relevant
supporting facts to the court's attention at both the initial sentencing and
resentencing proceedings, including defendant's mental health and substance
abuse disorders, compliance with treatment, and his having led a substantially
law-abiding life. Judge Haines also found that defendant had not demonstrated
that his sentence would have been any different if counsel had specifically
identified those mitigating factors, as the sentencing court considered the
relevant facts and still did not conclude that mitigating factors four, eight, or
nine applied.
As to mitigating factor ten, Judge Haines noted that, contrary to
defendant's claims, his trial counsel specifically raised and argued for
consideration of that factor. In addition, the court explained that we
determined in our October 28, 2015 order that mitigating factor ten was
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inapplicable because defendant was sentenced for a crime that carried a
presumption of incarceration. Judge Haines also rejected defendant's claim
that his trial counsel was ineffective for failing to argue relevant non-statutory
mitigating factors, such as his military service and employment with the City
of Philadelphia Fire Department, because trial counsel actually raised those
facts to the sentencing court.
Judge Haines disagreed with defendant's claim that he was "denied
adequate representation because [trial counsel] failed to correct" the erron eous
statement in the presentencing report that he had been convicted of a robbery.
Judge Haines explained that plaintiff was not prejudiced by counsel's error
because we reversed his initial sentence based on the first sentencing court's
reliance on the robbery conviction to support aggravating factor six.
At resentencing, the court concluded aggravating factor six did not apply
and resentenced defendant to a decreased term of incarceration, from six years
to five years. Finally, Judge Haines determined that an evidentiary hearing
was not required because plaintiff failed to establish a prima facie case of
ineffective assistance of counsel and the petition could be decided on the "filed
papers, transcripts, and oral arguments of counsel," and without testimony.
On appeal, defendant raises the following points:
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POINT I
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF SINCE THE
DEFENDANT FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL
COUNSEL AT SENTENCING, THEREBY
DENYING TO HIM AN OPPORTUNITY TO
RECEIVE A SENTENCE COMMENSURATE WITH
A THIRD DEGREE OFFENSE, ONE DEGREE
LOWER THAN THE CHARGE TO WHICH HE
PLED GUILTY.
POINT II
THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO DEMONSTRATE THE EXISTENCE
OF NUMEROUS MITIGATING FACTORS
IGNORED BY THE TRIAL COURT, BY FAILING
TO ADDRESS THE INAPPLICABILITY OF AT
LEAST ONE AGGRAVATING FACTOR FOUND
BY THE TRIAL COURT TO EXIST, AND BY
FAILING TO PRESENT A COGENT ARGUMENT
REQUESTING THE TRIAL COURT IMPOSE A
SENTENCE COMMENSURATE WITH A THIRD
DEGREE OFFENSE.[3]
Having considered the record in light of the applicable legal principles,
we find no merit in defendant's arguments. Judge Haines's decision is fully
3
For convenience and clarity, we have renumbered the point headings in
defendant's brief.
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supported by the record and is legally sound. We offer only the following
brief comments.
The PCR process provides a defendant a "last chance to challenge the
'fairness and reliability of a criminal verdict . . . .'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). When no
evidentiary hearing is held, we review de novo "both the factual findings and
legal conclusions of the PCR court . . . ." State v. Harris, 181 N.J. 391, 421
(2004).
Because defendant's PCR petition is predicated on his claim that trial
counsel was ineffective, he must satisfy the two-part test pronounced in
Strickland by demonstrating that "counsel's performance was deficient," that
is, "that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466
U.S. at 687; see also Fritz, 105 N.J. at 58. The first prong requires a showing
that "counsel's representation fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. It is the defendant's burden to
prove by a preponderance of the evidence that counsel's decisions about trial
strategy were not within the broad spectrum of competent legal representation.
See Fritz, 105 N.J. at 52.
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Under the second prong, a defendant must demonstrate that his counsel's
errors prejudiced the defense to the extent that the defendant was deprived of a
fair and reliable outcome. Strickland, 466 U.S. at 687. To prove this element,
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.
Here, defendant failed to satisfy either prong of the Strickland/Fritz test.
As Judge Haines correctly concluded, defendant's trial counsel was not
ineffective for failing to identify mitigating factors four, eight, and nine and
certain non-statutory mitigating factors because he provided the sentencing
court with the factual bases in support of those factors.
For example, at the January 16, 2015 sentencing hearing, trial counsel
advised the court of defendant's PTSD and drug addiction, which PCR counsel
claims are relevant to mitigating factor four.4 Similarly, at the December 11,
2015 resentencing hearing, trial counsel stressed that the defendant had largely
4
In light of this evidence, defendant's claim that "trial counsel never
discussed the possibility of presenting mitigation evidence to the sentencing
judge" is belied by the record. Further, although defendant submitted medical
records to the PCR court, he failed to identify any medical condition contained
in those documents that trial counsel failed to raise with the sentencing courts
and which would have affected the outcome of the proceeding.
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lived a law-abiding life, was a former Marine and had worked for the
Philadelphia Fire Department - all facts which PCR counsel acknowledged are
relevant to mitigating factors eight and nine. Further, as Judge Haines noted,
contrary to defendant's claim, his trial counsel raised mitigating factor ten.
Defendant also failed to demonstrate that but for his counsel's alleged
errors there was a reasonable probability the result of his sentencing
proceeding would have been different. See Strickland, 466 U.S. at 694. To
satisfy his burden of establishing a reasonable probability the results of the
proceedings would have been different, defendant must establish "a probability
sufficient to undermine confidence in the outcome." Ibid.With respect to trial counsel's failure to object to the mistaken robbery
conviction in defendant's pre-sentence report, any error did not result in an
improper sentence, as the sentencing court did not rely on that error when
defendant was resentenced. Likewise, defendant cannot establish he would
have received a reduced sentence simply because counsel failed to identify the
specific mitigating factors for the sentencing court. As noted, defendant's trial
counsel provided the factual bases for all relevant mitigating factors which the
court considered.
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Finally, defendant argues that the PCR court erred by failing to conduct
an evidentiary hearing. We disagree.
Merely raising a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed fact lie outside the record, and resolution of the issues
necessitate a hearing. R. 3:22–10(b); State v. Porter, 216 N.J. 343, 355 (2013).
A hearing was not required here because defendant failed to establish a prima
facie case for PCR, there were no material issues of disputed fact that could
not be resolved by reference to the existing record, and an evidentiary hearing
was not required to resolve defendant's claims. R. 3:22-10(b).
Affirmed.
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