                                NOT FOR PUBLICATION WITHOUT THE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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                                        2
      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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                                             3
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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                                        4
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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                                          5
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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                                        6
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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                                       7
      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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                                        8
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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                                         9
            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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