State of New Jersey v. Austin Clark ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0633-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AUSTIN CLARK,
Defendant-Appellant.
_________________________
Submitted March 12, 2024 – Decided March 19, 2024
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 13-12-3187
and 14-12-3442.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
William Reynolds, Atlantic County Prosecutor,
attorney for respondent (John Joseph Santoliquido,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Austin Clark appeals from a Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
An Atlantic County grand jury returned two indictments charging
defendant with a number of offenses arising from separate incidents. Defendant
pled guilty to two counts of first-degree robbery, one count of second-degree
conspiracy to commit robbery, and one count of carjacking. Pursuant to his
negotiated plea agreement, the trial judge sentenced defendant to concurrent ten-
year terms in prison on the two robbery counts, concurrent to a five-year term
for conspiracy. The judge also sentenced defendant to a consecutive fifteen -
year term for carjacking. Thus, defendant's aggregate term was twenty-five
years, subject to an eighty-five percent period of parole ineligibility pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a timely petition for PCR. He argued that his attorney
provided him with ineffective assistance because he failed to adequately argue
that defendant's age at the time of the offenses 1 should be considered by the trial
judge in determining an appropriate sentence. Defendant argued that even
1
Defendant was nineteen years old when he committed the offenses in June
2013.
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2
though a defendant's age was not a statutory mitigating factor at the time of
sentencing,2 his attorney should have provided the trial judge with expert
testimony and studies explaining why his youth warranted a lesser sentence than
that set forth in the negotiated plea.
Following oral argument, the PCR judge rendered a comprehensive
written decision, concluding that defendant did not satisfy the two -prong test of
Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a showing
that trial counsel's performance was deficient and that, but for the deficient
performance, the result would have been different. The PCR judge reviewed the
sentencing transcript and found that defendant's attorney did bring defendant's
age to the sentencing judge's attention and argued for a reduced sentence.
While the attorney did not bring in an expert, he argued that "like many
young men[,] [defendant's] brain hasn't matured yet. And that's true. They say
that men's brains don't mature physically, the frontal lobes, until they're [twenty-
five], when they [sic] are a million reasons for that, I believe. But that's who
we're dealing with now." The attorney referred to defendant as "a kid who is,
2
N.J.S.A. 2C:44-1(b)(14), which became effective on October 19, 2020, defines
a mitigating circumstance when "[t]he defendant was under [twenty-six] years
of age at the time of the commission of the offense." Our Supreme Court has
held that this sentencing provision is to be given prospective application only.
State v. Lane, 251 N.J. 84, 96-97 (2022).
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you know, barely an adult when these offenses took place." He told the trial
judge his client was a "bright kid" and named the grammar and high schools he
attended in the area.
Under these circumstances, the PCR judge found that even though this
line of argument was ultimately not successful, defendant's attorney adequately
presented his age-based contention to the trial judge. In addition, defendant
failed to demonstrate that the outcome of the sentencing would have been
different if defense counsel had presented expert testimony on this subject. As
noted above, defendant received the minimum term of imprisonment for the two
robbery charges and the conspiracy charge, and a sentence at the lower-end of
the range for carjacking. This appeal followed.
On appeal, defendant argues that he was "entitled to an evidentiary
hearing on his claim that counsel rendered ineffective assistance by failing to
advocate adequately at sentencing." We disagree.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he is entitled to the requested relief.
State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the defendant must allege and articulate specific
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facts that "provide the court with an adequate basis on which to rest its decision."
State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced him.
Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). There is a
strong presumption that counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz,
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105 N.J. at 52, the 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 (1984).
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in the PCR judge's written opinion. We discern
no abuse of discretion in the judge's consideration of the issues, or in her
decision to deny the petition without an evidentiary hearing. We are satisfied
that defense counsel's performance was not deficient, and defendant failed to
sustain his burden of demonstrating prejudice as required by the Strickland test.
Affirmed.
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