STATE OF NEW JERSEY VS. LARRY AUSTIN (11-03-0410, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5123-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN J. EVANS,
a/k/a KEVIN J. LEE, and
a/k/a KEVIN EVANS,
Defendant-Appellant.
__________________________________
Submitted January 31, 2017 – Decided April 3, 2017
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
09-07-1249.
Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Kevin Evans appeals the April 2, 2015 order denying
his petition for post-conviction relief (PCR). We affirm.
I.
The following facts are contained in the transcripts and the
April 2, 2015 opinion of the PCR judge, who was also the trial
judge.
On January 30, 2009, defendant shot two individuals from
behind as they passed him on an empty street in Jersey City. One
victim was shot in the leg and survived. The other victim was
shot in the back and died.
The grand jury charged defendant with first-degree purposeful
or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (Count One);
attempted first-degree murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
3 (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b).
On June 18, 2010, pursuant to a plea bargain negotiated by
trial counsel, defendant pled guilty to Count One as amended to
first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, and to
Count Two as amended to second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1). In exchange for defendant's guilty plea, the State
recommended a ten-year sentence on Count One and a seven-year
sentence on Count Two, to run concurrently and subject to the No
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Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Trial counsel
preserved the right to argue for a lower sentence.
The trial judge originally sentenced defendant on September
20, 2010. Trial counsel argued that defendant had previously been
shot at and attacked with a knife by the victims, and that he
feared for his life. Trial counsel argued defendant should receive
a sentence in the second-degree range. Trial counsel asked the
judge to find mitigating factor four (substantial grounds tending
to excuse or justify defendant's conduct), mitigating factor eight
(defendant's conduct was the result of circumstances unlikely to
recur), and mitigating factor nine (the character and attitude of
defendant indicate he is unlikely to commit another offense), as
well as the non-statutory mitigating factor of defendant's age of
sixteen at the time of the offense. N.J.S.A. 2C:44-1(b)(4), (8),
(9). The judge found mitigating factor three (defendant acted
under strong provocation) and aggravating factor three (the risk
defendant will commit another offense). N.J.S.A. 2C:44-1(a)(3),
(b)(3). Despite finding the aggravating factor substantially
outweighed the mitigating factor, the court sentenced defendant
one degree lower on Count One for a term of eight years in prison
and to a concurrent seven years in prison for Count Two, both
subject to NERA.
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The State appealed the sentence, claiming the trial court
erred in sentencing defendant one degree lower on Count One. On
May 2, 2011, we reversed because the court did not consider
N.J.S.A. 2C:44-1(f)(2), which governs the downgrading of a
sentence for a first-degree crime to a sentence for a second-
degree crime. N.J.S.A. 2C:44-1(f)(2) provides:
In cases of convictions for crimes of the
first or second degree where the court is
clearly convinced that the mitigating factors
substantially outweigh the aggravating
factors and where the interest of justice
demands, the court may sentence the defendant
to a term appropriate to a crime of one degree
lower than that of the crime for which he was
convicted.
We remanded for resentencing in accordance with N.J.S.A.
2C:44-1(f)(2). The same judge resentenced defendant on July 7,
2011. Trial counsel argued, and the court found, several
mitigating factors. The trial court found mitigating factor three
and mitigating factor nine "weigh[ed] in favor of lowering the
defendant's crime one degree for sentencing purposes." The court
also found mitigating factor seven, "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). However, the court did
"not give [that] factor much weight," citing defendant's four
adjudications as a juvenile, including one for assault. The court
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also found aggravating factor nine (the need for deterring
defendant and others from violating the law). N.J.S.A. 2C:44-
1(b)(9). The judge found "mitigating factors three and nine
substantially outweigh aggravating factor nine."
The trial court did not find compelling reasons to justify a
downgraded sentence "in the interest of justice." The court
emphasized defendant "was armed with a weapon, and although he may
have felt his life was in danger, he fired upon individuals from
behind and at close range without any indication that shots were
fired or about to be fired at him." The court resentenced
defendant on Count One to ten years in prison and to a concurrent
five years in prison for Count Two, both subject to NERA.
Defendant did not appeal.
Defendant filed his PCR petition on March 31, 2014, claiming
an excessive sentence and ineffective assistance of counsel. After
hearing argument, the PCR judge, who had sentenced defendant,
denied his PCR petition in a well-reasoned opinion.
Defendant appeals, raising the following arguments:
POINT ONE: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION DURING HIS RESENTENCING.
POINT TWO: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
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RELIEF AFTER TRIAL COUNSEL FAILED TO ARGUE FOR
MITIGATING FACTORS AT THE TIME OF SENTENCING.
POINT THREE: THE COURT MISAPPLIED ITS
DISCRETION IN APPLYING R. 3:22-2, R. 3:22-4
AND R. 3:22-5 AS PROCEDURAL BARS AGAINST THE
DEFENDANT'S FILING FOR POST CONVICTION RELIEF
IN THIS CASE.
II.
As the PCR court did not conduct an evidentiary hearing, we
"conduct a de novo review." State v. Harris, 181 N.J. 391, 421
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005). We must hew to this standard of review.
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State
v. Fritz, 105 N.J. 42, 58 (1987). "The defendant must demonstrate
first that counsel's performance was deficient, i.e., that
'counsel made errors so serious that counsel was not functioning
as the "counsel" guaranteed the defendant by the Sixth Amendment.'"
State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
The "defendant must overcome a strong presumption that counsel
rendered reasonable professional assistance." Ibid. Second, "a
defendant must also establish that the ineffectiveness of his
attorney prejudiced his defense." Ibid. "The defendant must show
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that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 279–80 (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
III.
As noted in the PCR court's opinion, to justify a downgraded
sentence, "the sentencing court [must] satisfy a two prong test.
The court must be 'clearly convinced that the mitigating factors
substantially outweigh the aggravating ones and that the interest
of justice demand[s] a downgraded sentence.'" State v. Megargel,
143 N.J. 484, 496 (1996) (citing N.J.S.A. 2C:44-1(f)(2)).
"[T]he standard governing downgrading is high." Id. at 500.
The decision to downgrade a defendant's
sentence "in the interest of justice" should
be limited to those circumstances in which
defendant can provide "compelling" reasons for
the downgrade. These reasons must be in
addition to, and separate from, the
"mitigating factors which substantially
outweigh the aggravating factors," that the
trial court finds applicable to a defendant
under the first prong of [N.J.S.A. 2C:44-
1(f)(2)].
[Id. at 501-02 (citation omitted).]
We start with the first prong. Defendant argues trial counsel
was ineffective for not objecting when the trial court at
resentencing did not mention mitigating factor seven when finding
"mitigating factors three and nine substantially outweigh
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aggravating factor nine." However, the court properly did "not
give [mitigating factor seven] much weight," because the sixteen-
year-old defendant had four juvenile adjudications. See State v.
Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196
N.J. 85 (2008).
Defendant also contends trial counsel was ineffective for not
arguing mitigating factor eight. However, the trial court had
already found that factor inapplicable at the original sentencing.
Defendant also asserts trial counsel was ineffective for not
arguing defendant's voluntary surrender justified mitigating
factor twelve, "[t]he willingness of the defendant to cooperate
with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12).
However, mitigating factor twelve applies only to defendants who
are willing to provide assistance to law enforcement, such as by
"identif[ying] other perpetrators or assist[ing] in solving other
crimes." Read, supra, 397 N.J. Super. at 613; see State v.
Dalziel, 182 N.J. 494, 498, 505-06 (2005) (testimony against a co-
defendant). There is no reason to believe defendant's voluntary
surrender was sufficient to find mitigating factor twelve. See
Read, supra, 397 N.J. Super. at 613 (questioning whether even "a
confession qualifies as 'cooperation' within the intent of"
N.J.S.A. 2C:44-1(b)(12)). Moreover, the trial court took
8 A-5123-14T4
defendant's voluntary surrender into account in finding mitigating
factor nine.
In any case, defendant cannot show prejudice. Additional
mitigating factors could not have changed the outcome of the first
prong. The trial court already found mitigating factors three and
nine substantially outweighed the lone aggravating factor. That
result would have been the same even if the court found mitigating
factors eight and twelve and explicitly included them and
mitigating factor seven in its calculus. As the PCR court found,
"the additional consideration of mitigating factors 7, 8, and 12
would do nothing to change the analysis, because the Court already
determined that the circumstances of the offense satisfied the
first prong of the downgraded sentence test." Thus, "the failure
to consider additional mitigating factors is inconsequential."
Moreover, additional mitigating factors could not affect the
outcome of the second prong. "The reasons supporting the interest
of justice prong must be 'in addition to, and separate from' the
mitigating factors which substantially outweigh the aggravating
factors and thus satisfy the first prong." State v. Lake, 408
N.J. Super. 313, 325-26 (App. Div. 2009) (quoting Megargel, supra,143 N.J. at 502). A defendant cannot satisfy the second prong by
"a restatement of the reasons underlying the various mitigating
factors" as that would be "contrary to Megargel's directive that
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the basis for the second prong must be separate and distinct from
the mitigating factors." Id. at 329 (finding the trial court
erred in considering facts "appropriate for consideration as
mitigating factors, and therefore applicable to the first prong,
[because] they have no application to the second prong"); see
Megargel, supra, 143 N.J. at 503 (reversing the sentencing court
because it "failed to identify any reasons, compelling or
otherwise, in addition to and separate from, the mitigating
factors, which would explain why the interest of justice demanded
a downgraded sentence").
Rather, "because the focus remains on the offense and not the
offender, the surrounding circumstances used as compelling reasons
for a downgrade should arise from within the context of the offense
itself." Lake, supra, 408 N.J. Super. at 326 (citing Megargel,
supra, 143 N.J. at 500). "[T]he severity of the crime remains the
single most important factor in considering whether the interest
of justice demands a downgrade." Ibid. "If the surrounding
circumstances of an offense make it very similar to a lower degree
offense, a downgraded sentence may be appropriate." Ibid. (citing
Megargel, supra, 143 N.J. at 500). Here, the trial court found
the nature of the crime was not akin to second-degree reckless
manslaughter because defendant was armed and shot the victims from
behind at close range without provocation.
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Nonetheless, defendant argues trial counsel could have argued
mitigating factor seven — his lack of an adult record — in the
second prong because the trial judge found mitigating factors
three and nine were sufficient to substantially outweigh the
aggravating factor and did not mention mitigating factor seven in
the first-prong balancing. However, defendant's argument that
"excess" mitigating factors can be used in the second prong would
add a third step to what the Supreme Court has ruled is a "two-
step test." Megargel, supra, 143 N.J. at 495-96. After finding
the aggravating and mitigating factors, the sentencing court would
have to find (1) "the mitigating factors substantially outweigh
the aggravating factors," then (2) determine whether any of the
mitigating factors were unneeded to substantially outweigh the
aggravating factors, and only then decide if, considering those
"excess" mitigating factors, (3) "the interest of justice must
demand the downgrade." Id. at 495.
In any event, no case has adopted defendant's proposed change
in the law. Trial counsel could not be "ineffective for not
anticipating a change in law — a change which [the Supreme] Court
has not indicated that it will adopt. . . . [T]here cannot be a
cognizable ineffective assistance claim when there is not yet a
recognizable legal basis for the motion that defendant says should
have been made." Harris, supra, 181 N.J. at 436. "In analyzing
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trial counsel's performance, we examine the law as it stood at the
time of counsel's actions, not as it subsequently develop[s]."
State v. Goodwin, 173 N.J. 583, 597 (2002).
Finally, defendant argues trial counsel was ineffective for
not reiterating at resentencing that the victims had shot at
defendant in the past, that defendant had been attacked with a
knife, and that he feared for his life due to threats. However,
trial counsel made those arguments successfully to the trial judge
at the original sentencing, those facts were in the presentence
report, and the same judge at resentencing expressly considered
the presentence report and the arguments of the defense. Moreover,
the judge reiterated at resentencing that defendant had been shot
at and threatened and "was afraid that the victim was going to
shoot him."
Finally, additional mitigating factors could not otherwise
affect defendant's sentence. At resentencing, he got the minimum
legal sentence absent a downgrade.
Accordingly, the PCR court properly found defendant failed
to "demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits," and thus did not establish "a
prima facie case" meriting an evidentiary hearing. See State v.
Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct.
140, 139 L. Ed. 2d 88 (1997).
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The PCR court noted Rule 3:22-2(c) limits the ability to
raise excessive sentencing claims on PCR and ruled defendant was
"attempt[ing] to raise an otherwise inappropriate issue for post-
conviction relief by appending it to an ineffective assistance of
counsel claim." The PCR court also noted defendant could have
raised the excessive sentencing claim on appeal. See R. 3:22-4.
We need not consider those procedural bars. However, we caution
defendants not to cloak displeasure with a sentence as an
ineffective assistance of counsel claim. If a defendant believes
his sentencing is excessive, direct appeal is the appropriate
avenue for relief.
Affirmed.
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