                                NOT FOR PUBLICATION WITHOUT THE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-4609-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHARLES GUEST,

     Defendant-Appellant.
________________________________

                   Submitted October 22, 2018 – Decided December 20, 2018

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-01-0201.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John V. Molitor, Designated Counsel, on the
                   brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Patrick D. Isbill, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      In his post-conviction relief (PCR) petition, defendant charged that

following his guilty plea to first-degree manslaughter, N.J.S.A. 2C:11-4(a)(1),

his trial counsel provided ineffective assistance at his sentencing by failing to

present several character witnesses and argue certain mitigating factors in an

effort to reduce his plea agreement's recommended sentence of eighteen years

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He now

appeals the PCR judge's order denying his petition without an evidentiary

hearing, arguing:

            POINT I

            THE LAW DIVISION SHOULD NOT HAVE HELD
            DEFENDANT'S    PETITION  FOR[]    POST-
            CONVICTION RELIEF WAS PROCEDURALLY
            BARRED PURSUANT TO COURT RULE 3:22-2.

            POINT II

            THIS COURT SHOULD REVERSE THE TRIAL
            COURT'S DECISION TO DENY DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF AND
            REMAND THE MATTER FOR AN EVIDENTIARY
            HEARING.


      We agree with defendant that his petition should not have been

procedurally barred. We affirm, however, because we agree with the judge's

determination that the alleged mitigating factors were not supported by the


                                                                         A-4609-16T2
                                       2
record, and even if the witnesses testified in accordance with their certifications

submitted in support of PCR, the judge would have still imposed the eighteen-

year sentence.

      In the early morning hours of September 4, 2011, defendant went to the

apartment of Ashley Williams. Admittedly intoxicated at the time, defendant

claimed they engaged in consensual sex. At some point, apparently to heighten

her sexual experience, she requested he choke her, and he complied. According

to defendant, they had previously engaged in rough sex. Possibly due to his

inebriation, he maintained that he went to sleep not aware that anything was

wrong with Williams. When he woke up, he found her dead. But contending

he was in shock, he did not call the police or anyone else to report her death.

Instead, he went to a job interview at a fast food restaurant. After he returned

to the apartment, he called the police to report Williams' death. An autopsy

revealed that she died from blunt neck trauma.

      Defendant was arrested over a month later, and he was subsequently

indicted for first-degree murder, N.J.S.A. 2C:11-4(a)(1), (2). Plea negotiations

resulted in him pleading guilty to the downgraded offense of first-degree

manslaughter in exchange for the State's recommendation that he serve an




                                                                           A-4609-16T2
                                        3
eighteen-year NERA prison term.         The trial judge sentenced defendant in

accordance with the plea agreement.

      Defendant filed a direct appeal, only challenging his sentence.            An

excessive sentence panel of this court affirmed his sentence.         See State v.

Charles R. Guest, No. A-2622-15 (App. Div. June 6, 2016).

      Almost three months later, defendant filed a PCR petition. He contended

his trial counsel was ineffective for failing to argue mitigating factors two, five,

nine, and twelve at his sentencing. N.J.S.A. 2C:44-1(b)(2) (defendant did not

contemplate his conduct would cause or threaten serious harm); -1(b)(5) (the

victim induced or facilitated defendant's conduct); -1(b)(9) (defendant is

unlikely to reoffend); and -1(b)(12) (defendant cooperated with law

enforcement). In addition, he asserted trial counsel failed to consult with him

to discuss the presentation of mitigating evidence at his sentencing, such as the

four character witnesses who provided certifications evidencing his kind nature

and volunteering efforts in his church and community.              Defendant also

submitted a copy of the transcript of a statement by the medical examiner, whose

autopsy of Williams concluded she died from blunt neck trauma, but indicated




                                                                            A-4609-16T2
                                         4
he could not foreclose the possibility that "rough sex with somebody squeezing

[her] neck," could have caused her death. 1

      The PCR judge, who had previously accepted defendant's plea and

sentenced him, denied defendant relief without an evidentiary hearing. In his

oral decision, the judge determined the PCR petition was procedurally barred

because defendant should have raised his PCR arguments when he filed his

direct appeal alleging his sentence was excessive. State v. Pierce, 115 N.J.

Super. 346, 347 (App. Div. 1971); State v. Vance, 112 N.J. Super. 479, 481

(App. Div. 1970).

      Nonetheless, the judge, applying the well-known standard set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. Fritz, 105 N.J.

42, 58 (1987), addressed each of defendant's mitigation arguments and found

there was no merit to the claim that counsel was ineffective.       Regarding

mitigating factor two, the judge disagreed with defendant's contention that his

action did not contemplate harm to Williams because choking her during rough

sex could obviously cause serious harm. As for mitigating factor five, while

Williams may have consented to rough sex, the judge found she did not induce



1
   The statement was given based upon questioning from defendant's trial
counsel prior to defendant's guilty plea.
                                                                       A-4609-16T2
                                       5
or facilitate defendant's conduct because she did not consent to being strangled

to the point of unconsciousness or death.      The judge maintained defendant

violated Williams' trust by being so reckless as to manifest extreme indifference

to human life. With respect to mitigating factor nine, the judge determined that

defendant's criminal record and contact with the criminal justice system

contradicts his contention that he is unlikely to reoffend in the future. And, the

judge decided that mitigating factor twelve does not apply where defendant

merely reported Williams' death, but did not help the police solve other crimes.

State v. Dalziel, 182 N.J. Super. 494, 505-06 (2005); State v. Read, 397 N.J.

Super. 598, 613 (App. Div. 2008). The judge further recognized that defendant's

identification as being the last person seen with Williams was not a mystery,

and when he initially spoke to the police, he tried to exculpate himself from

liability.

       In addition, the judge determined that even if the character witnesses

testified at sentencing, it would not have lessened defendant's sentence. The

judge pointed to the favorable sentence that counsel negotiated with the State

despite the evidence against defendant, and that Williams' family appeared at

sentencing contending the sentence was too light.




                                                                          A-4609-16T2
                                        6
       Since the judge found there was no prima facie evidence of ineffective

assistance of counsel, defendant was not entitled to an evidentiary hearing. State

v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999).

       Based upon our review of the record, we take issue with the judge's

determination that defendant's PCR petition contending ineffective assistance

by counsel for not arguing mitigation at sentencing was procedurally barred by

Rule 3:22-4(a) because he could have raised the assertion on direct appeal.

Other than for enumerated exceptions, which do not apply here, Rule 3:22-4(a)2


2
    Rule 3:22-4(a) provides:

             First Petition for Post-Conviction Relief. Any ground
             for relief not raised in the proceedings resulting in the
             conviction, or in a post-conviction proceeding brought
             and decided prior to the adoption of this rule, or in any
             appeal taken in any such proceedings is barred from
             assertion in a proceeding under this rule unless the
             court on motion or at the hearing finds:

             (1) that the ground for relief not previously asserted
             could not reasonably have been raised in any prior
             proceeding; or

             (2) that enforcement of the bar to preclude claims,
             including one for ineffective assistance of counsel,
             would result in fundamental injustice; or



                                                                          A-4609-16T2
                                        7
bars a defendant from employing a PCR petition to assert a claim that could have

been raised at trial or on direct appeal. See State v. Nash, 212 N.J. 518, 546

(2013). However, because defendant only asserted that his trial counsel was

ineffective in filing to provide evidence and argument in support of a sentence

lighter than recommended in his plea agreement, the bar does not apply.

Although we rejected his excessive sentence appeal, we did not address, nor

could we in that proceeding, his PCR claims alleging that trial counsel was

ineffective for not seeking a lighter sentence because such claims were outside

the trial record. See Preciose, 129 N.J. at 460 (1992).




            (3) that denial of relief would be contrary to a new rule
            of constitutional law under either the Constitution of
            the United States or the State of New Jersey.

            A ground could not reasonably have been raised in a
            prior proceeding only if defendant shows that the
            factual predicate for that ground could not have been
            discovered earlier through the exercise of reasonable
            diligence.

            A denial of relief would be contrary to a new rule of
            constitutional law only if the defendant shows that the
            claim relies on a new rule of constitutional law, made
            retroactive to defendant's petition by the United States
            Supreme Court or the Supreme Court of New Jersey,
            that was unavailable during the pendency of any prior
            proceedings.
                                                                        A-4609-16T2
                                       8
      Nevertheless, we agree with the judge's decision rejecting the merits of

defendant's PCR contentions, and we affirm substantially for the sound reasons

set forth in his oral decision.

      Affirmed.




                                                                      A-4609-16T2
                                      9
