State of New Jersey v. Darius H. Gittens

NOT FOR PUBLICATION WITHOUT THE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-3731-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIUS H. GITTENS,

Defendant-Appellant.

_______________________

Submitted November 7, 2024 – Decided December 27, 2024

Before Judges Paganelli and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey, Law

Division, Burlington County, Indictment No.

13-06-0659.

Jennifer Nicole Sellitti, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel, on

the brief).

LaChia L. Bradshaw, Burlington County Prosecutor,

attorney for respondent (Alexis R. Agre, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Darius H. Gittens, appeals from the June 2023 order denying,

without an evidentiary hearing, his application for post-conviction relief (PCR).

Defendant appeals the PCR court's decision that rejected his claim of ineffective

assistance of appellate counsel. He contends counsel on direct appeal

insufficiently addressed the sentencing court's alleged error in undervaluing his

post-arrest cooperation with law enforcement. Because defendant's claims

failed to warrant a hearing, we affirm.

I.

We affirmed defendant's conviction and sentence on direct appeal. See

State v. Gittens, No. A-1868-16 (App. Div. July 18, 2019) (slip op. at 4). Given

the limited scope of defendant's current appeal, we outline the more salient facts

and procedural history from our prior opinion and the record.

A.

Defendant was charged in a ninety-six-count indictment, along with a co-

defendant, for a series of twenty-five burglaries and related offenses committed

in 2011 and 2012. He was tried and convicted in 2015 by a jury on several

severed counts including three separate third-degree home burglaries and a

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related second-degree theft.1 Id. at 2. Thereafter, defendant entered an "open

plea to twenty additional third-degree burglaries, three related second-degree

thefts, and one third-degree attempted burglary." Ibid. In October 2016, the

trial court sentenced defendant to an aggregate term of seventeen years '

imprisonment with eight years' minimum parole ineligibility. Ibid.

Testimony at trial revealed that after his arrest in September 2012,

defendant contacted one of the investigating detectives and "cooperate[d] with

police . . . in obtaining property that was eventually returned to [one of the

victims]." The detective testified that defendant requested, and the police

returned, defendant's GPS to him so he could travel to retrieve stolen property

located in New York. Defendant then returned "a men's watch, bracelets,

necklaces, Waterford bookends, [and] antique purses."

At sentencing before the trial judge who had heard the testimony

regarding defendant's cooperation, defense counsel and defendant argued that

defendant deserved the benefit of mitigating factor twelve, N.J.S.A. 2C:44-

1(b)(12).2 Defense counsel argued that factor twelve applied because defendant

1

The co-defendant testified at defendant's trial, implicating defendant, and

received a sentence of probation conditioned upon 364 days in jail.

2

Mitigating factor twelve addresses "[t]he willingness of the defendant to

cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12).

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cooperated with law enforcement, including providing information to assist in

their investigation of co-defendant and another associate and traveling to New

York and Florida attempting to secure and return the stolen property. Counsel

argued that "the best evidence that the State had in all of their cases

w[ere] . . . items that [defendant] gave back in order to try to help make the

victims whole."

Both defendant and his counsel cast co-defendant as the person who

actually committed the burglaries and defendant as "the person [who] would

kind of fence all the items" and cooperated with police. Defendant addressed

the court at length regarding the extent of his cooperation, emphasizing that he

"provided all of the cooperation," by comparison to co-defendant who "did[ no]t

provide anything" but received a probationary sentence.

The sentencing court considered the cooperation arguments and rejected

mitigating factor twelve. The court stated:

[D]efendant is sophisticated and as the [c]ourt reads the

presentence report . . . and by virtue of

what . . . defendant has said, . . . what he was really

seeking was transactional immunity for any drugs or

goods . . . that he returned, he was bargaining for a

lesser sentence by returning the stolen goods. It was

not totally altruistic and . . . defendant knew at that

point . . . that the police probably had some DNA

evidence which was clearly going to link him to the

commission of some of the offenses so the [c]ourt does

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not take the cooperation into account as a mitigating

factor.

The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk

defendant will reoffend, six, N.J.S.A. 2C:44-1(a)(6), the nature and extent of

defendant's criminal history, and nine, N.J.S.A. 2C:44-1(a)(9), the need for

deterrence of defendant and others, "clearly outweigh[ed]" the non-existent

mitigating factors. As we previously summarized,

[f]ollowing the merger of four burglary counts into

related theft counts, the court imposed consecutive

terms of ten years and seven years on two of the theft

counts, with parole ineligibility terms of five and three

years, respectively. The court imposed concurrent

seven-year terms on the remaining two theft counts. As

for the multiple remaining (unmerged) burglary and

attempted burglary counts, the court imposed

concurrent five-year terms.

[Gittens, slip op. at 2-3.]

B.

On direct appeal, among other arguments concerning alleged trial and

other errors, defendant challenged his sentence as excessive and disparate from

that of his co-defendant, arguing the court erred in finding certain aggravating

factors and failing to find any mitigating factors.

We determined sufficient evidence supported the trial court's findings as

to the sentencing factors. We similarly "reject[ed] defendant's argument that the

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sentence should be set aside because of the disparity with the sentence of his co-

defendant," recognizing, as did the sentencing court, that the co-defendant pled

guilty and was not similarly situated. Id. at 18.

We squarely addressed defendant's claim that the court erred in rejecting

mitigating factor twelve:

Defendant contends the court erred in finding no

mitigating factors. He highlighted at sentencing, and

repeats before us, that he cooperated with police by

retrieving several items. The court addressed the

argument, but concluded that defendant's efforts were a

self-serving attempt to secure a favorable disposition in

a case in which the State had compelling DNA evidence

against him. The court duly acknowledged defendant's

cooperation, but was not compelled under the

circumstances to grant the mitigating factor any weight.

See State v. Dalziel, 182 N.J. 494, 504-05 (2005)

(stating a judge was required to acknowledge

defendant's cooperation, but was not required to give it

weight).

[Id. at 17.]

C.

On October 14, 2021, defendant filed a petition for PCR, accompanied by

a certification in support of his petition, raising various claims related to alleged

discovery violations, the disparate sentence of co-defendant, and the purported

sentencing errors at issue here. Defendant's petition included a document he

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termed his "sentencing [s]tatement," which he claimed the trial court

"prevented" him from reading at his sentencing hearing. 3

PCR counsel filed a supplemental brief that focused on the significant

difference between the co-defendant's sentence and that imposed upon

defendant. Specifically, PCR counsel argued: (1) trial counsel was ineffective

for failing to provide defendant with various discovery items and intentionally

withholding evidence favorable to his defense and supporting available

mitigating sentencing factors; and (2) the trial court imposed an excessive and

illegal sentence. Neither defendant's petition nor PCR counsel's arguments

addressed any errors on the part of appellate counsel.

The State countered that defendant had raised nothing more than "bald

assertions" and "conspiracy theories." As to the sentencing challenge, the State

argued "this exact issue" was raised and resolved on direct appeal and should

not be relitigated in a PCR petition.

3

We glean from the sentencing record that defendant began reading this

statement, which, in addition to addressing his cooperation, raised grievances

with defense counsel and the prosecutor and alleged trial and discovery errors.

Before defendant finished, the court instructed defendant to confine his

statement to the mitigating and aggravating factors and information pertinent to

defendant's requested sentence of special probation.

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On June 7, 2023, the PCR judge denied defendant's petition in its entirety.

The judge's thorough written decision, in pertinent part, addressed and denied

what it identified as defendant's claim that appellate counsel was ineffective for

failing to sufficiently advance the argument that the sentencing court erred in

rejecting mitigating factor twelve.

The PCR judge first found the mitigating factor twelve claim merely

reprised defendant's excessive sentence claims, which are not proper for PCR.

The judge reasoned:

[Defendant's] sentence was reviewed and affirmed by

the Appellate Division. The appellate court accepted

the trial court's findings applying the aggravating and

mitigating factors. For example, the sentencing judge

rejected consideration of mitigating factor [twelve] for

good reasons, and that decision was upheld on appeal.

Review of his sentencing is only an issue for direct

appeal, has already been addressed, and is not

appropriate for consideration in this PCR motion.

See . . . Rule 3:22-3, and State v. Acevedo, 205 N.J. 40,

47 (2011), the claim of excessive sentence is "not an

appropriate ground for (PCR)."

Nonetheless, the judge found defendant did not raise any specific facts or

examples of appellate counsel's alleged deficiency, determining "[d]efendant's

allegations of inadequate representation [we]re too vague, conclusory, or

speculative to warrant an evidentiary hearing." Thus, the judge denied

defendant's request for an evidentiary hearing, finding defendant failed to meet

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Strickland's requirements and "ha[d] not supported his PCR claims with other

evidence outside of vague assertions and general disagreement with the way in

which trial and appellate counsel handled his trial and appeal." See Strickland

v. Washington, 466 U.S. 668, 687 (1984)

Appellate counsel, according to the judge, "was thorough and more than

adequate," raising challenges to trial evidence, legal rulings, sentencing and

Recovery Court determinations among other issues. The judge further held that

defendant failed to show prejudice and found, "[t]here is nothing further to

develop on the record that could change [the] conclusion" that "the performance

of trial and appellate counsel fell well within the range of adequate, competent

and reasonable assistance to . . . defendant." Accordingly, the court denied an

evidentiary hearing.

II.

Defendant appeals arguing:

POINT I

THIS MATTER MUST BE REMANDED FOR AN

EVIDENTIARY HEARING BECAUSE

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF APPELLATE COUNSEL'S

INEFFECTIVENESS FOR INADEQUATELY

RAISING N.J.S.A. 2C:44-1(b)(12), DEFENDANT'S

WILLINGNESS TO COOPERATE WITH LAW

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ENFORCEMENT AUTHORITIES, AS A

MITIGATING FACTOR.

Defendant admits that direct appeal counsel raised the argument that the

court erred in rejecting mitigating factor twelve, but argues that counsel did not

adequately present the issue or the details of defendant's cooperation. Defendant

claims appellate counsel raised the argument as a "mere afterthought," quoting

the appellate brief that stated, "[l]astly, [defendant] voluntarily returned a

majority of the stolen items to the police without any agreement with the

[p]rosecutor for consideration." Defendant acknowledges issues raised in a prior

proceeding "ordinarily bar PCR, [but claims] the rule is relaxable where, as in

the instant matter, the constitutional issue raised is of substantial import."

Defendant also contends our prior reliance on Dalziel, 182 N.J. at 494, "was

egregiously misplaced."

The State claims "[d]efendant attempted to couch the argument[s] in terms

of ineffective assistance of counsel but really only advanced the same arguments

that were raised on direct appeal." It casts defendant's claims as "sentencing

arguments" already addressed, and improperly raised via PCR petition. As such,

the State contends "[d]efendant cannot relitigate a settled matter by slightly

rephrasing the argument." Further, the State asserts defendant failed to present

any evidence of appellate counsel's deficiency or prejudice that resulted.

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III.

In the absence of an evidentiary hearing, we review factual findings and

legal conclusions de novo. See State v. Blake, 444 N.J. Super. 285, 294 (App.

Div. 2016). To prevail on PCR applications, defendants must show by a

preponderance of the evidence they are entitled to relief. See State v. Preciose,

129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and

articulate specific facts that "provide the court with an adequate basis on which

to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The Sixth Amendment of the United States Constitution guarantees the

criminally accused the effective assistance of legal counsel. See Strickland, 466

U.S. at 687. To establish a deprivation of that right, a convicted defendant must

satisfy the two-part test enunciated in Strickland demonstrating that: (1)

counsel's performance was deficient; and (2) the deficient performance actually

prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58

(1987) (adopting the Strickland two-part test in New Jersey). Failure to

establish either prong requires the denial of a PCR petition founded on an

ineffective assistance of counsel claim. See Strickland, 466 U.S. at 700.

A defendant is entitled to effective assistance of counsel at all stages of

the proceedings, including on a first appeal as of right. See State v. Morrison,

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215 N.J. Super. 540, 545 (App. Div. 1987). This court reviews an order rejecting

an "ineffective assistance of appellate counsel" claim under the two-pronged

Strickland standard. See State v. Gaither, 396 N.J. Super. 508, 513-14 (App.

Div. 2007). "[I]n applying the Strickland standard to assess a claim of

ineffective assistance of appellate counsel, defendant must show not only that

his attorney's representation fell below an objective standard, but also that he

was prejudiced, i.e., but for counsel's unprofessional errors, the result would

have been different." Id. at 513 (quoting Morrison, 215 N.J. Super. at 546).

To satisfy the first prong, defendant must demonstrate counsel's

performance was deficient and "fell below an objective standard of

reasonableness" and "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687-88. Defendants "must allege specific facts and

evidence supporting [their] allegations." State v. Porter, 216 N.J. 343, 355

(2013). "Bald assertions" will not suffice. State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999). Further, reviewing courts "must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance," and "the defendant must overcome the presumption

that, under the circumstances, the challenged action [by counsel] 'might be

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considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citing Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

With respect to the first Strickland prong, as it applies to claims of

ineffective assistance of appellate counsel, a court must be mindful that

"appellate counsel does not have a constitutional duty to raise every

nonfrivolous issue requested by the defendant." Morrison, 215 N.J. Super. at

549 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Gaither, 396

N.J. Super. at 516 (holding that appellate counsel is not "required to advance

every claim insisted upon by a client on appeal"). Certainly, appellate counsel

"should bring to the court's attention controlling law that will vindicate [his]

client's cause," but appellate counsel "does not have an obligation 'to advocate

ad infinitum.'" State v. O'Neil, 219 N.J. 598, 612 (2014).

Under Strickland's second prong, a defendant must "affirmatively prove"

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

of the proceeding would have been different." State v. Gideon, 244 N.J. 538,

551 (2021) (quoting Strickland, 466 U.S. at 694). "Although a demonstration

of prejudice constitutes the second part of the Strickland analysis, courts are

permitted leeway to choose to examine first whether a defendant has been

prejudiced, . . . and if not, to dismiss the claim without determining whether

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counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J.

339, 350 (2012) (citation omitted); see also State v. Alvarez, 473 N.J. Super.

448, 455-56 (App. Div. 2022).

To establish a prima facie case of ineffective assistance warranting an

evidentiary hearing, "the defendant must demonstrate a reasonable likelihood

that his or her claim will ultimately succeed on the merits." State v. Marshall,

148 N.J. 89, 158 (1997) (citing Preciose, 129 N.J. at 463). The mere raising of

a claim for PCR does not entitle the defendant to an evidentiary hearing. See

Cummings, 321 N.J. Super. at 170. Rather, "[i]f the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to [PCR], . . . then an evidentiary hearing need not be granted."

Marshall, 148 N.J. at 158 (citations omitted).

Although ineffective assistance of counsel claims are particularly suitable

for PCR consideration, sentencing arguments are not. See Acevedo, 205 N.J. at

47 (holding that sentencing arguments are "not . . . appropriate ground[s] for

[PCR]."). Sentencing claims authorized to proceed by PCR petition are limited

to those that are raised in conjunction with other grounds for relief and allege

sentences exceeded or violated applicable law. See R. 3:22-2(c). They are not

"substitute[s] for appeal." R. 3:22-3.

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Indeed, PCR is not an appropriate vehicle to raise or rehash excessive

sentencing challenges. It is well-settled that "mere excessiveness of sentence

otherwise within authorized limits, as distinct from illegality by reason of being

beyond or not in accordance with legal authorization, . . . can only be raised on

direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 (1974). If

a sentence falls within the statutory range, "issues relating to the determination

of aggravating and mitigating factors, the balancing thereof and the conclusions

resulting from that balancing generally deal with claims of 'excessiveness,' as

opposed to 'illegality.'" State v. Ervin, 241 N.J. Super. 458, 472 (App. Div.

1989).

More specifically:

While identification of the applicable aggravating and

mitigating factors may perhaps lend itself to abstract

and objective analysis, the weighing process envisioned

by the Code's provisions necessarily reflects the

seasoning and experience of the particular sentencing

judge. To permit post-conviction review of the

adequacy of the sentencing judge's findings and

conclusions would open the gates to an avalanche of

grievances, often long after the sentence was imposed.

In light of the availability of relief by way of direct

appeal, we perceive no need to make [PCR] an open

sesame for the wholesale review of sentences.

[State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div.

1988).]

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Importantly, "[a] prior adjudication upon the merits of any ground for

relief is conclusive whether made in the proceeding resulting in the conviction

or in any post-conviction proceeding . . . or in any appeal taken from such

proceedings." R. 3:22-5.

IV.

Applying these fundamental legal principles, we consider and reject

defendant's claims.

First, we concur with the PCR judge's findings that defendant's PCR

ineffective assistance of counsel claim—at its root—seeks review of our prior

determination that the sentencing court did not abuse its discretion in rejecting

mitigating factor twelve or impose an excessive disparate sentence. The PCR

judge correctly found that sentencing challenges are only cognizable on direct

appeal, and defendant's issues were raised and resolved on direct appeal.

Nevertheless, as defendant's claim is brought alleging appellate counsel's

deficiency, and because the PCR judge ultimately addressed that substantive

claim, we too assess the record substantively and conclude that defendant failed

to establish a prima facie claim under Strickland.

As to the first prong, the record shows that appellate counsel clearly raised

the issue of defendant's cooperation on direct appeal, claiming the trial court

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erred in failing to find mitigating factor twelve. We expressly recognized that

"[defendant] highlighted at sentencing, and repeat[ed] before us, that he

cooperated with police," reflecting our review of the sentencing record that was

replete with references to defendant's cooperation, including his specific claims

to have provided police with essential information and travelled to secure and

return certain property. Gittens, slip op. at 17 (emphasis added). Throughout

the sentencing, defense counsel and defendant urged the court to find

defendant's cooperation—particularly by comparison to that provided by the co-

defendant—mitigated in favor of a much lesser sentence of special probation.

They cited specific examples and relevant trial testimony to the sentencing

court; but the court, having also presided over the trial, found defendant's efforts

"self-serving" in the wake of damaging evidence connecting defendant to the

crimes.

After our careful review, we determined the sentencing court did not abuse

its discretion. Our citation to Dalziel, 182 N.J. at 494, for the well-settled

principle that sentencing courts must consider all sentencing factors raised by

the parties, but need not find them, has no bearing on a challenge to appellate

counsel's representation of defendant, which we are satisfied was not deficient.

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Even assuming appellate counsel failed to adequately present the issue,

for the reasons just discussed, defendant has not shown prejudice under

Strickland's second requirement. As a result of the appellate counsel's

presentation, we evaluated the trial record, defendant's claimed cooperation, and

the court's findings, and affirmed the sentence. Defendant has failed to identify

any additional information by way of his PCR petition that would have likely

led to a different result.

Affirmed.

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