STATE OF NEW JERSEY VS. LAMAR P. WARREN (10-09-0989, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0064-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAMAR P. WARREN,
Defendant-Appellant.
Submitted January 30, 2019 - Decided March 19, 2019
Before Judges Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 10-09-0989.
Joseph E. Krakora, Public Defender, attorney for
appellant (Joseph A. Manzo, Designated Counsel, on
the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Mary E. Stevens, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Lamar P. Warren appeals from the denial of his petition for
post-conviction relief (PCR), contending he established a prima facie case of
ineffective assistance of counsel requiring an evidentiary hearing. Because
Judge Billmeier was correct in determining the evidence insufficient to sustain
defendant's burden, we affirm.
Defendant, a member of the Sex Money Murder gang, killed a thirteen-
year-old girl when he and another member of the gang shot into a crowd
attending a block party in Trenton. He planned the crimes with a higher ranking
member of his gang to avenge the shooting of one of its members by a rival gang
expected to attend the party. Defendant was indicted on charges of first-degree
murder, conspiracy and weapons offenses. He pleaded guilty in a negotiated
agreement to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b), in exchange for the State's
recommendation that he spend thirty years in State prison on the aggravated
manslaughter charge, subject to the periods of parole ineligibility and
supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
and serve a consecutive nine-year term, with four-and-a-half years' parole
ineligibility, for possession of the handgun.
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At sentencing, the State argued for aggravating factors one, the nature and
circumstances of the offense; two, the gravity and seriousness of the harm
inflicted on the victim; three, the risk that defendant will commit another
offense; five, the substantial likelihood defendant is involved in organized
criminal activity; six, the extent of defendant's prior criminal record; and nine,
the need for deterring defendant and others from violating the law. N.J.S.A.
2C:44-1(a)(1), (2), (3), (5), (6) and (9).
Defendant's counsel filed a sentencing memorandum arguing imposition
of aggravating factors one and two would constitute double counting, and factors
three, six and nine were unwarranted as defendant had no adult convictions and
his juvenile record, with the exception of one adjudication of fighting at age
thirteen, consisted of "non-violent and CDS or alcohol related" offenses.
Although acknowledging factor five was present, as "[i]t appears defendant was
a member of a street gang," defendant's counsel argued he "was a low ranking
member and there is no indication he participated in any other gang related
activity." Counsel argued for mitigating factors four, substantial grounds
tending to excuse or justify defendant's conduct; eight, that the conduct was the
result of circumstances unlikely to recur; nine, the character and attitude of
defendant indicate he is unlikely to commit another offense; and thirteen, a
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youthful defendant, substantially influenced by another person more mature than
he. See N.J.S.A. 2C:44-1(b)(4), (8), (9) and (13).
Counsel further argued at length, both in his memorandum and at
sentencing, that the State's recommended sentence was unjust when compared
to the lighter sentences the State offered the "higher-ups" in the gang who
ordered the shooting and provided defendant the gun. Counsel contended that
"[i]f the State is willing to recommend leniency for gang managers who ordered
the shooting . . . surely the same consideration should apply to a youthful
offender directed to act by those more mature and acting out of fear for his safety
and that of his brother" who drove him to the scene. Counsel further contended
that because the gun defendant used in the shooting was supplied by those
higher-ups and only in his possession for that incident, defendant should "be
sentenced to the lower end of the range for aggravated manslaughter and that
the sentence for unlawful possession of a weapon run concurrently if not
merged."
Judge Fleming rejected those arguments in sentencing defendant in
accordance with his negotiated plea. Specifically, Judge Fleming found
aggravating factors one and two applied because defendant was involved in the
planning of the shooting, which was arranged to avenge the shooting of a fellow
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gang member by a rival gang. He found aggravating factor three as he was
confident that if released from custody, defendant "would return, without
hesitation, to the gang life that he participated in prior to this offense."
Judge Fleming found aggravating factor five, noting defendant admitted
his gang involvement, which "has brought a curse to the City of Trenton."
Although acknowledging defense counsel's arguments about defendant's record,
the judge nevertheless found defendant's "abominable juvenile history" of
thirteen contacts and eight adjudications warranted the finding of aggravating
factor six, noting he would "weigh that factor only slightly in [his] balancing."
The judge further found no one could dispute a finding of aggravating factor
nine, "the need to deter this defendant and others, others in this courtroom,
others in this City, others in this country from violating the law and
understanding that actions have consequences and that punishment needs to be
imposed for actions that harm others and for violations of the law."
Judge Fleming rejected that any mitigating factors applied. In rejecting
mitigating factor four, the judge specifically dismissed any notion that defendant
acted under duress. The judge noted defendant, albeit young, occupied a higher
rank in the gang than others, including his brother, who were older. Judge
Fleming found "[t]here was no duress here and to suggest otherwise . . . is
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unsupported by the entire record in this matter." He likewise rejected mitigating
factors eight and nine as wholly unsupported by the record. Judge Fleming
advised he gave strong consideration to whether a finding of mitigating factor
thirteen was warranted, but concluded defendant "was not substantially
influenced by another person more mature than himself. As indicated, he had
rank, he had influence, he could have said no and he didn't."
Balancing the factors qualitatively, the judge found "the aggravating
factors substantially, and I stress substantially, outweigh the mitigating factors
that are argued." Judge Fleming noted the efforts expended by counsel in
hammering out the plea in considering defendant's request that he depart from
the negotiated agreement by imposing a lesser sentence. The judge concluded
that were he "inclined to depart from" the agreement the parties negotiated,
"there's no doubt in my mind that it would be an upward deviation rather than a
downward."
Defendant appealed his sentence, which we reviewed on a sentencing
calendar, R. 2:9-11. Finding defendant's sentence not manifestly excessive or
unduly punitive and not an abuse of discretion, see State v. Bieniek, 200 N.J.
601, 612 (2010), we affirmed but remanded for reconsideration of whether the
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weapon charge should have merged into the aggravated manslaughter conviction
for sentencing purposes.
Judge Fleming reconsidered the sentence in accordance with our remand
and imposed the same sentence. The judge noted again that this was a negotiated
plea to consecutive term sentences, and the elements of unlawful possession of
a weapon are "separate and distinct" from the elements of aggravated
manslaughter, indicating the convictions should not merge. See State v. Tate,
216 N.J. 300, 306-07 (2013). Although acknowledging defense counsel's
argument that the State is typically willing to dismiss an unlawful possession of
a weapon charge in the context of a negotiated plea, the judge noted "this was
anything but the typical case."
Observing defendant received "a significant reduction from the State’s
plea offer" of fifty years, Judge Fleming found defendant was sentenced to
"essentially what he bargained for" and merging the convictions would permit
defendant a "free crime" contrary to State v. Yarbough, 100 N.J. 627, 643-44
(1985). We affirmed the sentence on defendant's appeal, and the Supreme Court
denied defendant's petition for certification. State v. Warren, 223 N.J. 280(2015).
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In his amended PCR petition, defendant argued plea counsel was
ineffective for failing to investigate the case and present witnesses favorable to
his defense, failing to submit the statements of several of defendant's friends and
family who would have spoken on his behalf at sentencing resulting in the
court's failure to find any mitigating factors, and failing to argue at sentencing
that imposition of aggravating factors one and two constituted double counting.
Defendant also argued appellate counsel was ineffective for failing to make that
argument on appeal.
Judge Billmeier denied the petition without an evidentiary hearing. He
rejected defendant's claim that plea counsel failed to investigate his case because
defendant failed utterly to identify what facts a competent investigation would
have revealed and how they would have affected defendant's decision to enter
his plea. Having reviewed the several statements from friends and family
members defendant presented with his petition, the judge concluded the
statements only reiterated the arguments defendant's counsel presented to Judge
Fleming, all of which the judge rejected as inconsistent with the facts in the
record. Judge Billmeier thus concluded plea counsel was not ineffective for his
alleged failure to advise defendant's friends and family that they could speak at
sentencing and the proffered statements would not have persuaded Judge
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Fleming to find mitigating factors four and thirteen, thereby possibly lessening
defendant's negotiated sentence.
Finally, Judge Billmeier found defense counsel was not ineffective for
failing to argue the inapplicability of aggravating factors one and two as they
did not constitute double counting on the facts under established case law.
Moreover, assuming arguendo that the sentencing court erred in applying those
two aggravating factors and counsel was ineffective in failing to raise the issue,
the other aggravating factors found by the court, factors three, five, six and nine,
would still substantially outweigh the non-existent mitigating factors, meaning
defendant suffered no prejudice.
Defendant presents the following arguments on appeal:
POINT I
THE LOWER COURT ERRED IN FINDING THAT
THE PETITIONER FAILED TO MAKE A PRIMA
FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL.
A) Trial counsel's ineffectiveness with respect to the
failure to bring supporting persons before the court
to establish mitigating sentencing factors.
B) Trial counsel's ineffectiveness by failing to argue
against all aggravating factors found by the court,
and appellate counsel's ineffectiveness for failing
to appeal the sentencing court's findings.
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POINT II
BECAUSE THE DEFENDANT MADE A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE
OF TRIAL AND APPELLATE COUNSEL, THE
COURT MISAPPLIED ITS DISCRETION IN
DENYING POST-CONVICTION RELIEF WITHOUT
CONDUCTING A FULL EVIDENTIARY HEARING.
We reject those arguments as without sufficient merit to warrant
discussion in a written opinion, see R. 2:11-3(e)(2), and affirm the denial of
defendant's petition substantially for the reasons set forth in Judge Billmeier's
cogent and well-reasoned written opinion of August 7, 2017.
Affirmed.
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