                                NOT FOR PUBLICATION WITHOUT THE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-5483-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

S.D.M.,

     Defendant-Appellant.
______________________________

                    Submitted October 31, 2019 – Decided November 20, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 13-08-0837.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Phuong Vinh Dao, Designated Counsel, on
                    the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant S.D.M.1 appeals from the June 28, 2018 order of the Law

Division denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

                                          I.

        The following facts are derived from the record. P.J. is the mother of

defendant's minor daughter. The couple lived apart and were disputing custody

of their child. Defendant arranged to meet P.J. at a Passaic County diner to pick

up his daughter for the day. After P.J. threatened over the telephone to keep

defendant from seeing his daughter, he got out of his car, carrying bags

containing a shotgun, a handgun, ammunition, handcuffs, masking tape, and a

box cutter. He entered P.J.'s car, sat down, pointed the handgun at P.J., and told

her to drive to her home "so that we can talk." The gun remained in defendant's

lap pointed at P.J. for the approximately twenty-minute drive to her home. Their

four-year-old daughter was in the back seat of the car.

        Once at the house, defendant ordered P.J. to go upstairs to her apartment

and to leave their daughter alone in the car. While armed, defendant followed

P.J. to the apartment, where he handcuffed her to the stove. He later moved P.J.

to the bathroom, where he handcuffed her to a radiator. For approximately five


1
    We use initials to protect the identity of defendant's child.
                                                                          A-5483-17T4
                                           2
and a half hours, P.J. remained captive while defendant threatened her

repeatedly with his weapons. During the episode, defendant called P.J.'s mother,

asking her to retrieve the child from the car. In a subsequent call, defendant told

P.J.'s mother he was not going to allow P.J. to leave the apartment. Defendant

permitted P.J. to speak with her mother. P.J. asked her to call the police.

      When defendant heard police in the hallway of P.J.'s building, he opened

the apartment door and stood at the top of the stairs with his loaded shotgun. He

pointed the gun at officers as they approached the bottom of the stairs leading

to P.J.'s apartment, causing them to retreat. Ultimately, officers communicating

with defendant by telephone convinced him to release P.J. and surrender.

      A grand jury indicted defendant, charging him with: first-degree

kidnapping, N.J.S.A. 2C:13-1(a) and N.J.S.A. 2C:13-1(b)(2)2; two counts of

second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a); second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-

5(f); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a); third-degree terroristic

threats, N.J.S.A. 2C:12-3(a) and N.J.S.A. 2C:12-3(b); third-degree criminal



2
  The indictment appears to contain a typographical error, describing the charge
as a violation of N.J.S.A. 2C:13-2(b)(2), which does not exist.
                                                                           A-5483-17T4
                                        3
restraint, N.J.S.A. 2C:13-2(a); three counts of third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(9) (pointing shotgun at three police officers); third-degree

unlawful possession of weapon (shotgun), N.J.S.A. 2C:39-5(c)(1); two counts

of second-degree unlawful possession of a weapon (shotgun and handgun),

N.J.S.A. 2C:39-5(c)(2) and N.J.S.A. 2C:39-5(b); fourth-degree possession of a

large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree

unlawful possession of a weapon or device (hollow-nosed bullets), N.J.S.A.

2C:39-3(f)(1); third-degree possession of a weapon (box cutter) for an unlawful

purpose, N.J.S.A. 2C:39-4(d); and fourth-degree possession of a weapon (box

cutter) for an unlawful purpose, N.J.S.A. 2C:39-5(d).

      Pursuant to a negotiated agreement with the State, defendant entered a

plea of guilty to first-degree kidnapping, one count of second-degree possession

of a weapon for an unlawful purpose, and one count of third-degree aggravated

assault, which arose from pointing a shotgun at one of the police officers. In

exchange for defendant's guilty plea, the State agreed to dismiss the remaining

charges and recommend an aggregate sentence of no more than fifteen years. At

the plea hearing, defendant admitted he understood and consented to the terms

of the plea agreement, including the State's sentencing recommendation.




                                                                        A-5483-17T4
                                       4
      At sentencing, defendant's counsel highlighted his minimal prior criminal

record, non-violent history, and the emotionally-charged nature of the child

custody dispute. Counsel referred to a letter from defendant's grandmother

describing his positive attributes, and called defendant's niece as a witness. She

testified that defendant's family supported him.

      The court found aggravating factors: three, N.J.S.A. 2C:44-1(a)(3) ("[t]he

risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-

1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness

of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44 -

1(a)(9) ("[t]he need for deterring the defendant and others from violating the

law"). The court found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he

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").

      The court found the aggravating factors "very substantially outweigh[ed]"

the mitigating factor. When making that analysis, the court noted the significant

and ongoing emotional trauma P.J. and the couple's daughter experienced as the

result of defendant's criminal behavior, and emphasized the duration of the

kidnapping.    Consistent with the terms of the plea agreement, the court


                                                                           A-5483-17T4
                                        5
sentenced defendant to an aggregate fifteen-year period of incarceration, with

an eighty-five-percent period of parole ineligibility, pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

      On direct appeal, an excessive sentencing panel of this court issued an

order affirming defendant's sentence. State v. S.D.M., No. A-4863-14 (App.

Div. Dec. 15, 2015).      The Supreme Court denied defendant's petition for

certification. State v. S.D.M., 230 N.J. 512 (2017).

      Defendant thereafter filed a petition for PCR. He alleged his trial counsel

was ineffective because he failed to argue at sentencing: (1) for the court to find

additional mitigating factors, such as an absence of a likelihood defendant would

commit another offense and that defendant was suffering an extreme emotional

disturbance when he committed his offenses; (2) for a lesser sentence than the

term in the plea agreement; and (3) for sentencing on the kidnapping count at

one degree lower than first degree.

      Judge Marilyn C. Clark, who presided at defendant's plea allocution and

sentencing, heard his PCR petition. Judge Clark issued a comprehensive oral

opinion, in which she concluded defense counsel,

            a most experienced and excellent attorney, obtained a
            plea agreement after much negotiation that benefitted
            the defendant, given the evidence in the case. He
            explained at length that he had done his best and he did

                                                                           A-5483-17T4
                                        6
            not see any viable defenses. He had considered insanity
            and diminished capacity and had concluded correctly,
            in this [c]ourt's opinion, that these defenses would fail
            at trial.

                  .....

            [H]e presented the letter from defendant's grandmother,
            he presented the niece, who spoke, he cited the lack of
            criminal record, and he noted some history of
            employment . . . and the stress over [defendant's]
            daughter had resulted in his actions.

                  .....

            [Defendant's counsel] provided [defendant] with
            outstanding representation from start to finish. Indeed,
            there is no doubt that in plea negotiations he stressed to
            the prosecutor the extreme stress the defendant had
            been under over the tensions related to his daughter and
            he succeeded in getting, given the crimes here, a most
            beneficial plea agreement. As noted, it ended up being
            [fifteen] years. [The Assistant Prosecutor] emphasized
            that she had initially been firmly opposed to going
            below [twenty] and [defendant's counsel], in his
            arguments to her during negotiations, persuaded her to
            go to [fifteen]. There is . . . absolutely no basis for a
            finding of ineffective assistance of counsel.

In addition, Judge Clark found "there was no basis for [defendant's counsel] to

have argued that the first-degree kidnapping should be sentenced one degree

lower. As noted, [the court] found that the aggravating factors qualitatively

substantially outweigh the mitigating factors." On June 28, 2018, Judge Clark



                                                                         A-5483-17T4
                                        7
entered an order denying defendant's PCR petition without an evidentiary

hearing.

      This appeal followed. Defendant makes the following arguments for our

consideration:

             AS DEFENDANT RECEIVED INEFFECTIVE
             ASSISTANCE OF COUNSEL, HE IS ENTITLED TO
             POST-CONVICTION RELIEF.

             (A) PLEA COUNSEL FAILED TO VIGOROUSLY
             ARGUE MULTIPLE MITIGATING FACTORS AND
             AS SUCH, THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PCR [SIC] WITHOUT AFFORDING
             HIM AN EVIDENTIARY HEARING.

             (B) TRIAL COUNSEL FAILED TO ARGUE THAT
             DEFENDANT SHOULD BE SENTENCED TO ONE
             DEGREE LESS BASED ON THE INTEREST OF
             JUSTICE AND THAT THE MITIGATING FACTORS
             SUBSTANTIALLY        OUTWEIGH       THE
             AGGRAVATING FACTORS.

             (C) THE CUMULATIVE ERRORS COMMITTED
             BY   TRIAL   COUNSEL  REQUIRE POST-
             CONVICTION RELIEF.

                                         II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-

2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under the Constitution

                                                                             A-5483-17T4
                                         8
of the United States or the Constitution or laws of the State of New Jersey. . . ."

"A petitioner must establish the right to such relief by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific

facts" that "provide the court with an adequate basis on which to rest its

decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

      A hearing on a PCR petition is required only when: (1) a defendant

establishes a prima facie case in support of PCR; (2) the court determines that

there are disputed issues of material fact that cannot be resolved by review of

the existing record; and (3) the court determines that an evidentiary hearing is

required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)

(citing R. 3:22-10(b)). "A prima facie case is established when a defendant

demonstrates 'a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's




                                                                           A-5483-17T4
                                        9
decision to deny a PCR petition without an evidentiary hearing for abuse of

discretion. Preciose, 129 N.J. at 462.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance

of counsel, the defendant must meet the two-part test established by Strickland

and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

      Under Strickland, a defendant first must show that his or her attorney

made errors "so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's

performance is deficient if it "[falls] below an objective standard of

reasonableness." Id. at 688.

      A defendant also must show that counsel's "deficient performance

prejudiced the defense." Id. at 687. A defendant must establish that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different."          Id. at 694.    "A reasonable




                                                                           A-5483-17T4
                                         10
probability is a probability sufficient to undermine confidence in the outcome"

of the trial. Ibid.

      "[A] court need not determine whether counsel's performance was

deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997).

"If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that course should be

followed." Strickland, 466 U.S. at 697.

      Having carefully reviewed defendant's arguments in light of the record

and applicable legal principles, we affirm the June 28, 2018 order for the reasons

stated by Judge Clark in her thorough and well-reasoned oral opinion. We add

the following comments.

      Defendant's claims regarding the applicability of mitigating factors and

the length of his sentence are, in effect, excessive sentence arguments cloaked

as ineffective assistance of counsel claims. Defendant had the opportunity to

raise those arguments in his direct appeal. See State v. Acevedo, 205 N.J. 40,

45-46 (2011). This is an additional basis for affirming the trial court's order.

      Affirmed.




                                                                           A-5483-17T4
                                       11
