STATE OF NEW JERSEY VS. ANDREAS MOTLEY(03-06-2173, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1233-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREAS MOTLEY,
Defendant-Appellant.
__________________________________________
Submitted March 16, 2017 – Decided July 27, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
03-06-2173.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Frank
J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals from an October 7, 2015 order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the reasons that follow, we affirm.
In 2005, defendant pled guilty to first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1); first-degree robbery,
N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b).
During the plea colloquy, defendant admitted he and three
others conspired to commit a robbery in a Mini Mart. Defendant
carried out the robbery, during the course of which he shot and
killed a store clerk. At the time, defendant was seventeen
years of age. Defendant was sentenced, in the aggregate, to a
twenty-five-year term of imprisonment, with an eighty-five
percent period of parole ineligibility.
Defendant appealed his sentence, which was reviewed before
an Excessive Sentence Oral Argument (ESOA) Panel. Among other
things, defendant contended the court placed insufficient weight
upon mitigating factors twelve, N.J.S.A. 2C:44-1(b)(12)
(willingness of the defendant to cooperate with law enforcement
authorities), and thirteen, N.J.S.A. 2C:44-1(b)(13) (the conduct
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of a youthful defendant was substantially influenced by another
person more mature than defendant).
We rejected this argument and remanded for resentencing.
Our instruction to the sentencing court was that it was not to
consider aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature
and circumstance of the offense), and two, N.J.S.A. 2C:44-
1(a)(2) (gravity and seriousness of harm inflicted on the
victim). We further instructed the sentencing court to
recalculate jail credits. See R. 3:21-8.
On remand, without holding a hearing, the court imposed the
same sentence and reduced the number of jail credits. Defendant
appealed the sentence, which was again reviewed before an ESOA
Panel. Defendant did not raise the alleged failure of the court
to properly consider any mitigating factors. We remanded for
resentencing with instructions the sentencing court hold a
hearing to allow defendant to be present and, further,
reconsider the jail credits to be awarded to him.
In April 2012, the court imposed the same sentence, but
increased the number of jail credits to which defendant was
entitled. During the sentencing hearing, the court commented
mitigating factors twelve and thirteen were taken into
consideration by the State when it formulated its plea offer,
which in turn influenced the court's willingness to accept the
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State's recommendation. The court then remarked it did not find
any mitigating factors. Defendant did not file a direct appeal
of this sentence.
In March 2015, defendant filed a PCR petition. Designated
counsel subsequently filed a brief on defendant's behalf.
Defendant contended his resentencing attorney was ineffective
because she failed to argue mitigating factors twelve and
thirteen applied, as well as challenge the aggravating factors
advocated by the State. On October 7, 2015, the PCR court
denied defendant's petition for PCR, without holding an
evidentiary hearing.
On appeal, defendant presents the following issues for our
consideration:
POINT I – THE PCR COURT ERRED IN RULING THAT
MR. MOTLEY'S CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL AT SENTENCING WAS PROCEDURALLY
BARRED BECAUSE THE CLAIM COULD HAVE BEEN
RAISED ON DIRECT APPEAL.
POINT II – THE PCR COURT ERRED IN DENYING
MR. MOTLEY'S CLAIM THAT TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO ARGUE FOR
APPLICABLE MITIGATING FACTORS AT SENTENCING.
Having reviewed the briefs and the record, we are unpersuaded by
either of defendant's arguments and affirm the denial of his
PCR petition.
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The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, l05 N.J. 42 (l987). In general, in order to
prevail on a claim of ineffective assistance of counsel,
defendant must meet the following two-prong test: (l) counsel
made errors so egregious he or she was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the errors prejudiced defendant's
rights to a fair trial such that there exists a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064,
2068, 80 L. Ed. 2d at 693, 698.
If seeking to set aside a guilty plea based upon
ineffective assistance of counsel, the second prong a defendant
must meet is "there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty but
would have insisted on going to trial." State v. Nuñez-Valdéz,
200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J.
434, 457 (1994)).
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Here, defendant argues he was denied the effective
assistance of counsel because, at his second and final
sentencing hearing, his attorney failed to argue mitigating
factors twelve and thirteen applied, an omission he claims was
prejudicial.
First, defendant's sentencing arguments are not appropriate
for PCR because they could have been but were not raised on
direct appeal. R. 3:22-4(a). Second, generally, the
consideration of aggravating and mitigating factors are "not
cognizable claims on post-conviction relief" because they relate
to the excessiveness of the sentence, rather than to its
legality. State v. Acevedo, 205 N.J. 40, 46-47 (2011) (citing
State v. Flores, 228 N.J. Super. 586, 596-97 (App. Div. 1988),
certif. denied, 115 N.J. 78 (1989)). Third and most important,
it is evident from the record the court did consider these two
factors.
Because defendant failed to make a prima facie showing of
ineffectiveness of counsel within the Strickland-Fritz test, the
PCR court correctly concluded an evidentiary hearing was not
warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed.
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