STATE OF NEW JERSEY v. LUIS M. NAVARRO (14-02-0126, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-3110-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS M. NAVARRO,
a/k/a LUIS M. NAVARRO JR.,
and LUIS M. VAVARRO,

Defendant-Appellant.
__________________________

Submitted June 2, 2022 – Decided June 29, 2022

Before Judges Gooden Brown and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 14-02-
0126.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Kaila L. Diodati,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

Defendant appeals from the September 11, 2020 Law Division order

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

hearing. On appeal, defendant raises the following single point for our

consideration:

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO
ARGUE ADEQUATELY AT SENTENCING.

Based on our review of the record and the governing legal principles, we affirm.

Defendant was charged in a twelve-count indictment with: first-degree

robbery, N.J.S.A. 2C:15-1(a)(1); first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1); second-degree burglary, N.J.S.A. 2C:18-2(a)(1); second-degree

eluding, N.J.S.A. 2C:29-2(b); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two counts of

third-degree theft, N.J.S.A. 2C:20-3(a); third-degree criminal mischief, N.J.S.A.

2C:17-3(a)(1); third-degree possession of a weapon for an unlawful purpose,

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

2C:39-5(d); and fourth-degree possession of a prohibited weapon, N.J.S.A.

2C:39-3(h).

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 On August 18, 2015, defendant entered a negotiated guilty plea to the

robbery charge. Under the terms of the plea agreement, the State agreed to

recommend a sentence not to exceed twenty years in prison, subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to refrain

from seeking an extended term and move to dismiss the remaining counts of the

indictment at sentencing. During the plea colloquy, defendant admitted that on

November 12, 2013, while committing a theft at the YMCA in Vineland, he used

a stun gun to inflict bodily injury upon an individual.

On February 19, 2016, defendant was sentenced in accordance with the

plea agreement to eighteen-years' imprisonment, subject to NERA. The

sentencing judge found aggravating factors three, six, nine, twelve, and thirteen.

See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another

offense"); 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 the defendant has been

convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and

others from violating the law"); N.J.S.A. 2C:44-1(a)(12) ("[t]he defendant

committed the offense against a person who the defendant knew or should have

known was [sixty] years of age or older"); N.J.S.A. 2C:44-1(a)(13) ("[t]he

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defendant, while in the course of committing or attempting to commit the crime,

. . . used or was in possession of a stolen motor vehicle").

In mitigation, the judge found mitigating factors six and twelve. See

N.J.S.A. 2C:44-1(b)(6) ("[t]he defendant has compensated or will compensate

the victim . . . for the damage or injury that the victim sustained"); N.J.S.A.

2C:44-1(b)(12) ("[t]he willingness of the defendant to cooperate with law

enforcement authorities"). After evaluating the factors, the judge determined

the aggravating factors substantially outweighed the mitigating factors and

sentenced defendant accordingly. See State v. Natale, 184 N.J. 458, 488 (2005)

(stating that "when the aggravating factors preponderate, sentences will tend

toward the higher end of the [sentencing] range").

Defendant appealed his sentence, challenging the sentencing judge's

consideration of aggravating factor twelve. We affirmed on our Sentence Only

Argument (SOA) calendar, finding that "the sentence [was] not manifestly

excessive or unduly punitive and [did] not constitute an abuse of discretion ."

See R. 2:9-11. The Supreme Court denied certification. State v. Navarro, 228

N.J. 406, 407 (2016).

Defendant filed a timely pro se PCR petition, asserting among other things

that "[his] constitutional rights were violated." In a supporting counseled brief,

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defendant argued "[he] received an illegal sentence as the court failed to

properly consider mitigating factors at sentencing." Specifically, defendant

asserted the sentencing judge failed to consider mitigating factors three and

eleven. See N.J.S.A. 2C:44-1(b)(3) ("[t]he defendant acted under a strong

provocation"); N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant

would entail excessive hardship to the defendant or the defendant 's

dependents").

Additionally, defendant cited his rehabilitative efforts while incarcerated

and submitted copies of his high school diploma, completion certificates for

various programs, and his prison disciplinary record. He argued that based on

his successful completion of the programs, obtaining his high school diploma,

and remaining infraction free while incarcerated, mitigating factors eight, nine,

and ten were "now present." See N.J.S.A. 2C:44-1(b)(8) ("[t]he defendant's

conduct was the result of circumstances unlikely to recur"); N.J.S.A. 2C:44-

1(b)(9) ("[t]he character and attitude of the defendant indicate that the defendant

is unlikely to commit another offense"); N.J.S.A. 2C:44-1(b)(10) ("[t]he

defendant is particularly likely to respond affirmatively to probationary

treatment").

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 Although the argument did not appear in defendant's PCR petition and

supporting briefs submitted in defendant's appendix in this appeal, at oral

argument, the PCR judge noted that defendant had also "claim[ed] he received

ineffective assistance of counsel [IAC]" based on plea counsel's failure to

advance "certain mitigating factors at sentencing." Further, PCR counsel argued

at the oral argument that plea counsel had countenanced an "abuse of discretion"

on the part of the sentencing judge by virtue of not "do[ing] so mething" to

prevent the imposition of an illegal or improper sentence. Additionally, PCR

counsel contended that defendant could not have raised arguments about his

self-improvement efforts in prior proceedings because those efforts "did not

occur before he was sentence[d]."

The PCR judge rejected defendant's claims in an oral opinion. The judge

determined defendant did not receive an illegal sentence. See State v. Hyland,

238 N.J. 135, 146 (2019) ("[E]ven sentences that . . . rest on an abuse of

discretion by the sentencing court are legal so long as they impose penalties

authorized by statute for a particular offense and include a disposition that is

authorized by law."). Further, according to the judge, defendant failed to

establish a prima facie case of IAC under the standard set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

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State v. Fritz, 105 N.J. 42, 49-53 (1987), to justify an evidentiary hearing or

PCR.

In specifically rejecting defendant's contention that plea counsel's

performance was deficient, the judge recounted that at sentencing, plea counsel

had asked the court to: "consider mitigating factors [six] and [twelve]"; accord

those factors "substantial weight"; reject the State's argument that "aggravating

factor [twelve]" applied; and sentence defendant "in the range of [ten] to

[fifteen] years." Plea counsel had "also provided the [c]ourt with two

certificates [of completion] from a correspondence school [and] a Bible

course[.]"

Turning to the prejudice prong, the judge stated defendant "failed to show

how . . . he was prejudiced" because defendant himself had presented the

arguments to the sentencing judge he claimed plea counsel had omitted,

including his drug addiction, the influence of a codefendant, his remorse, and

the hardship his incarceration would cause his ailing mother, fiancée, and three

minor children. See State v. Hess, 207 N.J. 123, 154 (2011) (explaining that

"the failure to present mitigating evidence or argue for mitigating factors was

[IAC]--even within the confines of the plea agreement" when "the sentencing

court was deprived of information and arguments that might well have led it to

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impose a lesser term"). The judge entered a memorializing order and this appeal

followed.

On appeal, defendant argues the PCR judge erred in rejecting his claim

that plea counsel "failed to advocate meaningfully and adequately for [him] at

his sentencing hearing" without affording him an evidentiary hearing. The mere

raising of a PCR claim does not entitle a defendant to an evidentiary hearing.

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather,

"view[ing] the facts in the light most favorable to a defendant," State v. Preciose,

129 N.J. 451, 463 (1992), PCR judges should grant evidentiary hearings in their

discretion only if the defendant has presented a prima facie claim of IAC,

material issues of disputed fact lie outside the record, and resolution of those

issues necessitates a hearing, R. 3:22-10(b). See also State v. Porter, 216 N.J.

343, 355 (2013); State v. Marshall, 148 N.J. 89, 158 (1997).

In order to establish a prima facie claim of IAC under the Strickland/Fritz

test, first a defendant "must show that counsel's performance 'fell below an

objective standard of reasonableness[.]' . . . Second, [a defendant] must show

that 'there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'" Hess, 207 N.J.

at 146 (quoting Strickland, 466 U.S. at 688, 694).

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 A defendant must establish both prongs of the Strickland/Fritz test to

obtain a new sentencing hearing based on counsel's ineffectiveness. See

Strickland, 466 U.S. at 689, 697; Fritz, 105 N.J. at 58. Although a failure to

satisfy either prong results in the denial of a PCR petition based on IAC, State

v. Parker, 212 N.J. 269, 280 (2012), "[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which . . .

will often be so, that course should be followed," Strickland, 466 U.S. at 697.

See also State v. Gaitan, 209 N.J. 339, 350 (2012) ("[C]ourts are permitted

leeway to choose to examine first whether a defendant has been prejudiced, and

if not, to dismiss the claim without determining whether counsel's performance

was constitutionally deficient." (citations omitted) (citing Strickland, 466 U.S.

at 697)).

"[W]e review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing." State v. Brewster,

429 N.J. Super. 387, 401 (App. Div. 2013). However, where, as here, no

evidentiary hearing was held, we "conduct a de novo review of both the factual

findings and legal conclusions of the PCR court." State v. Reevey, 417 N.J.

Super. 134, 146-47 (App. Div. 2010) (quoting State v. Harris, 181 N.J. 391, 421

(2004)).

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 We are satisfied from our review of the record that defendant failed to

make a prima facie showing of IAC within the Strickland/Fritz test to warrant

PCR or an evidentiary hearing. Plea counsel was not ineffective by not arguing

for mitigating factors eight, nine, and ten because, as PCR counsel conceded at

oral argument, evidence of defendant's commendable rehabilitation efforts

developed post-sentencing. See State v. Rivera, 249 N.J. 285, 299 (2021)

("[T]he sentencing court is required to 'view a defendant as [that defendant]

stands before the court on the day of sentencing.'" (second alteration in original)

(quoting State v. Jaffe, 220 N.J. 114, 124 (2014))).

Additionally, because there was no evidence in the record to suggest that

the victim had provoked defendant, plea counsel was not ineffective for not

arguing for mitigating factor three. See State v. Teat, 233 N.J. Super. 368, 372

(App. Div. 1989) ("The provocation referred to [in N.J.S.A. 2C:44-1(b)(3)]

'relates to the conduct of the victim toward the actor.'" (quoting State v.

Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985))). Finally, defendant

failed to show a reasonable probability that the outcome would have been

different had plea counsel advocated for mitigating factor eleven because, at

sentencing, defendant informed the judge about his three children, his fiancée,

and his ailing mother. See R. 3:21-4(b) (permitting a defendant "to make a

A-3110-20
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statement in his or her own behalf and to present any information in mitigation

of punishment" at sentencing).

Affirmed.

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