State of New Jersey v. George Rayford ( 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NOT FOR PUBLICATION WITHOUT THE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-1684-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE RAYFORD,
Defendant-Appellant.
_______________________
Submitted March 5, 2024 – Decided April 18, 2024
Before Judges Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 18-05-0253.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Abby P. Schwartz, Designated Counsel, on
the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Steven K. Cuttonaro, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant George Rayford appeals from an October 28, 2022 order
denying his petition for post-conviction relief (PCR). We affirm.
We glean the facts and procedural history from the record. Defendant
pleaded guilty to three counts of strict liability drug induced death, N.J.S.A.
2C:35-9(a). As part of the plea deal, the State agreed to recommend defendant's
sentence not exceed thirteen years imprisonment on each count, subject to the
"No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2, to run concurrently, and
the dismissal of the remaining ten counts of the indictment.
Prior to sentencing, defendant filed a motion to withdraw his plea. The
motion was denied. During the sentencing hearing, defense counsel argued for
the judge to consider mitigating factor seven.1 Also, in arguing mitigating factor
two,2 he contended while defendant could contemplate that harm could be
caused, "this case [involving three deaths wa]s so far beyond what one might
expect from distribution of crack cocaine that it simply was[ no]t contemplated."
1
"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." N.J.S.A. 2C:44-1(b)(7).
2
"The defendant did not contemplate that the defendant's conduct would cause
or threaten serious harm." N.J.S.A. 2C:44-1(b)(2).
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Therefore, defense counsel argued for the judge to impose the minimum
sentence.
The judge found aggravating factors three3 and nine,4 and mitigating
factor seven. The judge determined aggravating factors three and nine
substantially outweighed mitigating factor seven. While noting a harsher
sentence could be imposed, the judge found it was fair to sentence defendant
consistent with his plea agreement.
On direct appeal, defendant challenged his sentence pursuant to Rule 2:9-
11. Defendant argued the judge should have found mitigating factor two, in
addition to mitigating factor seven, and the matter should be remanded for
resentencing. We affirmed the sentence, concluding:
Having considered the record and argument of counsel,
and it appearing that the issues on appeal relate solely
to the sentence imposed, we are satisfied that the
sentence is not manifestly excessive or unduly punitive
and does not constitute an abuse of discretion. State v.
Cassady, 198 N.J. 165 (2009); State v. Roth, 95 N.J.
334 (1984).
[State v. Rayford, No. A-0271-19 (App. Div. June 30,
2020) (slip op. at 1).]
3
"The risk that the defendant will commit another offense." N.J.S.A. 2C:44-
1(a)(3).
4
"The need for deterring the defendant and others from violating the law."
N.J.S.A. 2C:44-1(a)(9).
A-1684-22
3
Thereafter, defendant filed a petition for PCR. He argued he was provided
with ineffective assistance of counsel by plea and appellate counsel. Defendant
argued plea counsel was ineffective because counsel failed to object to the trial
court's consideration of mitigating and aggravating factors. Defendant
contended appellate counsel was ineffective because counsel failed to argue in
favor of mitigating factors two, eight,5 and nine.6
The PCR judge denied defendant's petition. First, the judge addressed
defendant's contention that "the sentence imposed by the trial court was
improper, illegal and/or otherwise unconstitutional" because the "findings
concerning mitigating and aggravating factors were fatally flawed." Noting our
June 30, 2020 unpublished opinion, the judge determined defendant's sentencing
"argument [wa]s procedurally barred from assertion on" PCR. Relying on Rule
3:22-4(a), the judge held "[d]efendant may not raise any issue on a motion for
[PCR] that could have been raised, or was actually raised in a prior proceeding."
5
"The defendant's conduct was the result of circumstances unlikely to recur."
N.J.S.A. 2C:44-1(b)(8).
6
"The character and attitude of the defendant indicate that the defendant is
unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(9).
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Second, the PCR judge considered defendant's argument that plea counsel
was ineffective at sentencing. The judge rejected defendant's arguments that
plea counsel was ineffective because counsel: (1) failed to object to the judge's
weighing of aggravating and mitigating factors; and (2) did not adequately
prepare for sentencing. The judge was "unconvinced" plea counsel's alleged
"actions and omissions" were deficient. Moreover, the judge found plea
counsel's failure to provide a "written sentencing memorandum" "did not equate
to deficient performance."
In addition, the judge was "unconvinced that there [wa]s a reasonable
probability that [d]efendant's sentence would have been different or that
[d]efendant was in any way prejudiced by the allegedly deficient actions or
omissions of [plea] counsel, even if those actions were viewed cumulatively."
Likewise, the PCR judge rejected defendant's argument appellate counsel
was ineffective. The judge noted defendant argued that appellate counsel failed
to argue for the application of mitigating factors two, eight and nine.
However, the judge noted defendant's mitigating factor two argument was
made before us during argument on his June 2020 sentencing appeal. As to
mitigating factors eight and nine, the judge found defendant, despite multiple
opportunities, never made a "statement of apology." Further, the judge
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determined defendant's plea did not evince "remorse" or the "taking [of]
responsibility," especially since defendant attempted to withdraw his guilty plea.
In addition, the judge did "not believe that there was enough relevant
evidence to support the application of [mitigating factors eight and nine], and
thus, had appellate counsel argued them on appeal, [the PCR judge was] not
convinced that the result would have been any different. Therefore, [d]efendant
ha[d] failed to show any prejudicial result." Accordingly, the PCR judge entered
an order on October 28, 2022, denying the PCR petition.
On appeal, defendant raises the following argument for our consideration:
POINT I
COUNSEL FOR DEFENDANT WERE
INEFFECTIVE AS THEY BOTH FAILED TO
ARGUE MITIGATING FACTORS THAT WOULD
HAVE SUPPORTED A TEN-YEAR SENTENCE
BEING IMPOSED, IN VIOLATION OF
DEFENDANT'S RIGHT TO COUNSEL AND A FAIR
TRIAL.
More specifically, defendant contends "[b]oth [plea] and appellate counsel
were ineffective as neither argued the full amount of mitigating factors and
neither argued that certain aggravating factors did not apply." Defendant also
argues plea counsel only cited mitigating factor seven, and failed to object to
the judge's finding of aggravating factor three.
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As to appellate counsel, defendant contends "counsel argued only that
defendant did not contemplate the tragic outcome of what had occurred to the
three victims . . . [and] reiterated that defendant had no prior record." Defendant
argues appellate counsel should have argued aggravating factor three did not
apply, considering the finding of mitigating factor seven. Moreover, defendant
contends that appellate counsel should have argued for the application of
mitigating factors eight and nine.
We begin our discussion with a review of the principles governing our
analysis. "[PCR] relief is New Jersey's analogue to the federal writ of habeas
corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose,
129 N.J. 451, 459 (1992)). "[PCR] provide[s] a 'built-in safeguard that ensures
that a defendant [is] not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540
(2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
"A petitioner must establish the right to [PCR] by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "Our standard
of review is necessarily deferential to a PCR court's factual findings." Nash,
212 N.J. at 540. However, "we need not defer to a PCR court's interpretation of
the law; a legal conclusion is reviewed de novo." Id. at 540-41.
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"A petitioner is generally barred from presenting a claim on PCR that
could have been raised at trial or on direct appeal, R. 3:22-4(a), or that has been
previously litigated, R. 3:22-5." Id. at 546. Rule 3:22-5 provides "[a] prior
adjudication upon the merits of any ground for relief is conclusive whether made
in the proceedings resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule." "PCR will be precluded 'only if the
issue is identical or substantially equivalent' to the issue already adjudicated on
the merits." State v. Afanador, 151 N.J. 41, 51 (1997) (citations omitted).
"Those accused in criminal proceedings are guaranteed the right to
counsel to assist in their defense." State v. Gideon, 244 N.J. 538, 549 (2021)
(citing U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10).
To satisfy the right to counsel guaranteed by our
Federal and State Constitutions, it is not enough "[t]hat
a person who happens to be a lawyer is present at trial
alongside the accused," rather, the right to counsel has
been interpreted by the United States Supreme Court
and [the New Jersey Supreme] Court as "the right to the
effective assistance of counsel."
[Id. at 550 (first alteration in original) (quoting
Strickland v. Washington, 466 U.S. 668, 685-86
(1984)).]
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To establish a prima facie claim for ineffective assistance of counsel, a
defendant must satisfy the two-prong test established in Strickland.7
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
[Strickland, 466 U.S. at 687.]
Our Supreme Court has held "the failure to present mitigating evidence or
argue for mitigating factors" may establish ineffective assistance of counsel.
State v. Hess, 207 N.J. 123, 154 (2011). However, counsel is not required to
advance every conceivable argument. Jones v. Barnes, 463 U.S. 745, 753-54
(1983) ("A brief that raises every colorable issue runs the risk of burying good
arguments."). Moreover, a defendant is entitled to effective assistance of
appellate counsel, but "appellate counsel does not have a constitutional duty to
7
The New Jersey Supreme Court adopted the Strickland standard in State v.
Fritz, 105 N.J. 42, 58 (1987).
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raise every nonfrivolous issue requested by the defendant." State v. Morrison,
215 N.J. Super. 540, 549 (App. Div. 1987) (citation omitted). Appellate counsel
will not be found ineffective for failure to raise a meritless issue or errors an
appellate court would deem harmless. See State v. Echols, 199 N.J. 344, 361
(2009); State v. Harris, 181 N.J. 391, 499 (2004); State v. Reyes, 140 N.J. 344,
365 (1995).
Guided by these standards, we are not convinced the judge erred in
denying defendant's PCR petition based on the ineffective assistance of either
counsel. As to plea counsel, defendant's assertion that counsel only argued
mitigating factor seven is without merit. In fact, trial counsel argued mitigating
factor two applied.
Further, defendant's contention his plea counsel should have objected to
the sentencing judge's application of aggravating factor three, especially
considering the finding of mitigating factor seven, is overstated. In support of
this contention, defendant argues "the finding of [mitigating factor three] has
been held to be inappropriate where the defendant does not have a serious prior
record and there are no other reasons in the record to believe that the defendan t
will re-offend." In addition, he contends aggravating factor three "stands as a
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'counterpoise' to mitigating factor [seven,]" citing State v. Case, 220 N.J. 49, 67
(2014).
However, in Case, the New Jersey Supreme Court did not hold it was
"inappropriate" for a judge to find both aggravating factor three and mitigating
factor seven. Instead, the Court held it did "not presume that aggravating factor
three c[ould] not coexist with mitigating factor seven." Case, 220 N.J. at 67.
Moreover, here, both defendant's plea and appellate counsel successfully argued
in favor of mitigating factor seven, as the sentencing judge found this mitigating
factor applied.
As to aggravating factor three, risk of reoffense, defendant argues plea
counsel's representation was deficient because, while the judge expressed
concern about defendant's financial circumstances, there was "nothing in the
record" to support this concern. This argument is belied by the record. Here,
the judge specifically found "there[ wa]s a risk that [defendant] would commit
another offense . . . because of [his] lack of stable employment." Moreover, the
presentence report revealed defendant was last employed in 2018 when he went
bankrupt, he had no income or assets, and his liabilities exceeded nine thousand
dollars. Under these circumstances, plea counsel was not deficient for failing to
argue at sentencing that aggravating factor three was not present.
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Next, defendant contends both plea and appellate counsel were deficient
because they failed to argue mitigating factors eight and nine. Defendant
contends there is nothing in his "past to suggest he w[ould] commit more
crimes"; "he is clearly not a career criminal"; and his "character and attitude
indicate that he is unlikely to commit another offense."
However, defendant admitted to "distribut[ing] drugs to the same people
previously." Additionally, as previously discussed, the PCR judge found
defendant had "multiple opportunities both before and at sentencing to make a
statement of apology, [but] failed to do so." Therefore, we discern no error in
the PCR judge finding "there was not enough relevant evidence to support the
application of [mitigating] factors" eight and nine.
In sum, because we agree with the PCR judge that defendant failed to
establish the first Strickland prong in showing either plea or appellate counsel
were deficient in their representation, defendant's PCR petition was properly
denied. Given our determination, we need not address defendant's argument
under the second Strickland prong "that counsel[s'] deficient performance
prejudiced . . . defendant."
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To the extent we have not addressed any of defendant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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