STATE OF NEW JERSEY VS. LARRY AUSTIN (11-03-0410, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5123-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN J. EVANS,

a/k/a KEVIN J. LEE, and

a/k/a KEVIN EVANS,

Defendant-Appellant.

__________________________________

Submitted January 31, 2017 – Decided April 3, 2017

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

09-07-1249.

Joseph E. Krakora, Public Defender, attorney

for appellant (Adam W. Toraya, Designated

Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor,

attorney for respondent (Frances Tapia Mateo,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kevin Evans appeals the April 2, 2015 order denying

his petition for post-conviction relief (PCR). We affirm.

I.

The following facts are contained in the transcripts and the

April 2, 2015 opinion of the PCR judge, who was also the trial

judge.

On January 30, 2009, defendant shot two individuals from

behind as they passed him on an empty street in Jersey City. One

victim was shot in the leg and survived. The other victim was

shot in the back and died.

The grand jury charged defendant with first-degree purposeful

or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (Count One);

attempted first-degree murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-

3 (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b).

On June 18, 2010, pursuant to a plea bargain negotiated by

trial counsel, defendant pled guilty to Count One as amended to

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, and to

Count Two as amended to second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1). In exchange for defendant's guilty plea, the State

recommended a ten-year sentence on Count One and a seven-year

sentence on Count Two, to run concurrently and subject to the No

2 A-5123-14T4

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Trial counsel

preserved the right to argue for a lower sentence.

The trial judge originally sentenced defendant on September

20, 2010. Trial counsel argued that defendant had previously been

shot at and attacked with a knife by the victims, and that he

feared for his life. Trial counsel argued defendant should receive

a sentence in the second-degree range. Trial counsel asked the

judge to find mitigating factor four (substantial grounds tending

to excuse or justify defendant's conduct), mitigating factor eight

(defendant's conduct was the result of circumstances unlikely to

recur), and mitigating factor nine (the character and attitude of

defendant indicate he is unlikely to commit another offense), as

well as the non-statutory mitigating factor of defendant's age of

sixteen at the time of the offense. N.J.S.A. 2C:44-1(b)(4), (8),

(9). The judge found mitigating factor three (defendant acted

under strong provocation) and aggravating factor three (the risk

defendant will commit another offense). N.J.S.A. 2C:44-1(a)(3),

(b)(3). Despite finding the aggravating factor substantially

outweighed the mitigating factor, the court sentenced defendant

one degree lower on Count One for a term of eight years in prison

and to a concurrent seven years in prison for Count Two, both

subject to NERA.

3 A-5123-14T4

The State appealed the sentence, claiming the trial court

erred in sentencing defendant one degree lower on Count One. On

May 2, 2011, we reversed because the court did not consider

N.J.S.A. 2C:44-1(f)(2), which governs the downgrading of a

sentence for a first-degree crime to a sentence for a second-

degree crime. N.J.S.A. 2C:44-1(f)(2) provides:

In cases of convictions for crimes of the

first or second degree where the court is

clearly convinced that the mitigating factors

substantially outweigh the aggravating

factors and where the interest of justice

demands, the court may sentence the defendant

to a term appropriate to a crime of one degree

lower than that of the crime for which he was

convicted.

We remanded for resentencing in accordance with N.J.S.A.

2C:44-1(f)(2). The same judge resentenced defendant on July 7,

2011. Trial counsel argued, and the court found, several

mitigating factors. The trial court found mitigating factor three

and mitigating factor nine "weigh[ed] in favor of lowering the

defendant's crime one degree for sentencing purposes." The court

also found mitigating factor seven, "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." N.J.S.A. 2C:44-1(b)(7). However, the court did

"not give [that] factor much weight," citing defendant's four

adjudications as a juvenile, including one for assault. The court

4 A-5123-14T4

also found aggravating factor nine (the need for deterring

defendant and others from violating the law). N.J.S.A. 2C:44-

1(b)(9). The judge found "mitigating factors three and nine

substantially outweigh aggravating factor nine."

The trial court did not find compelling reasons to justify a

downgraded sentence "in the interest of justice." The court

emphasized defendant "was armed with a weapon, and although he may

have felt his life was in danger, he fired upon individuals from

behind and at close range without any indication that shots were

fired or about to be fired at him." The court resentenced

defendant on Count One to ten years in prison and to a concurrent

five years in prison for Count Two, both subject to NERA.

Defendant did not appeal.

Defendant filed his PCR petition on March 31, 2014, claiming

an excessive sentence and ineffective assistance of counsel. After

hearing argument, the PCR judge, who had sentenced defendant,

denied his PCR petition in a well-reasoned opinion.

Defendant appeals, raising the following arguments:

POINT ONE: THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S PETITION FOR POST CONVICTION

RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY

HEARING TO FULLY ADDRESS HIS CONTENTION THAT

HE FAILED TO RECEIVE ADEQUATE LEGAL

REPRESENTATION DURING HIS RESENTENCING.

POINT TWO: THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S PETITION FOR POST CONVICTION

5 A-5123-14T4

RELIEF AFTER TRIAL COUNSEL FAILED TO ARGUE FOR

MITIGATING FACTORS AT THE TIME OF SENTENCING.

POINT THREE: THE COURT MISAPPLIED ITS

DISCRETION IN APPLYING R. 3:22-2, R. 3:22-4

AND R. 3:22-5 AS PROCEDURAL BARS AGAINST THE

DEFENDANT'S FILING FOR POST CONVICTION RELIEF

IN THIS CASE.

II.

As the PCR court did not conduct an evidentiary hearing, we

"conduct a de novo review." State v. Harris, 181 N.J. 391, 421

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005). We must hew to this standard of review.

To show ineffective assistance of counsel, a defendant must

satisfy the two-pronged test of Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State

v. Fritz, 105 N.J. 42, 58 (1987). "The defendant must demonstrate

first that counsel's performance was deficient, i.e., that

'counsel made errors so serious that counsel was not functioning

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

State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

The "defendant must overcome a strong presumption that counsel

rendered reasonable professional assistance." Ibid. Second, "a

defendant must also establish that the ineffectiveness of his

attorney prejudiced his defense." Ibid. "The defendant must show

6 A-5123-14T4

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

unprofessional errors, the result of the proceeding would have

been different." Id. at 279–80 (quoting Strickland, supra, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

III.

As noted in the PCR court's opinion, to justify a downgraded

sentence, "the sentencing court [must] satisfy a two prong test.

The court must be 'clearly convinced that the mitigating factors

substantially outweigh the aggravating ones and that the interest

of justice demand[s] a downgraded sentence.'" State v. Megargel,

143 N.J. 484, 496 (1996) (citing N.J.S.A. 2C:44-1(f)(2)).

"[T]he standard governing downgrading is high." Id. at 500.

The decision to downgrade a defendant's

sentence "in the interest of justice" should

be limited to those circumstances in which

defendant can provide "compelling" reasons for

the downgrade. These reasons must be in

addition to, and separate from, the

"mitigating factors which substantially

outweigh the aggravating factors," that the

trial court finds applicable to a defendant

under the first prong of [N.J.S.A. 2C:44-

1(f)(2)].

[Id. at 501-02 (citation omitted).]

We start with the first prong. Defendant argues trial counsel

was ineffective for not objecting when the trial court at

resentencing did not mention mitigating factor seven when finding

"mitigating factors three and nine substantially outweigh

7 A-5123-14T4

aggravating factor nine." However, the court properly did "not

give [mitigating factor seven] much weight," because the sixteen-

year-old defendant had four juvenile adjudications. See State v.

Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196

N.J. 85 (2008).

Defendant also contends trial counsel was ineffective for not

arguing mitigating factor eight. However, the trial court had

already found that factor inapplicable at the original sentencing.

Defendant also asserts trial counsel was ineffective for not

arguing defendant's voluntary surrender justified mitigating

factor twelve, "[t]he willingness of the defendant to cooperate

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

However, mitigating factor twelve applies only to defendants who

are willing to provide assistance to law enforcement, such as by

"identif[ying] other perpetrators or assist[ing] in solving other

crimes." Read, supra, 397 N.J. Super. at 613; see State v.

Dalziel, 182 N.J. 494, 498, 505-06 (2005) (testimony against a co-

defendant). There is no reason to believe defendant's voluntary

surrender was sufficient to find mitigating factor twelve. See

Read, supra, 397 N.J. Super. at 613 (questioning whether even "a

confession qualifies as 'cooperation' within the intent of"

N.J.S.A. 2C:44-1(b)(12)). Moreover, the trial court took

8 A-5123-14T4

defendant's voluntary surrender into account in finding mitigating

factor nine.

In any case, defendant cannot show prejudice. Additional

mitigating factors could not have changed the outcome of the first

prong. The trial court already found mitigating factors three and

nine substantially outweighed the lone aggravating factor. That

result would have been the same even if the court found mitigating

factors eight and twelve and explicitly included them and

mitigating factor seven in its calculus. As the PCR court found,

"the additional consideration of mitigating factors 7, 8, and 12

would do nothing to change the analysis, because the Court already

determined that the circumstances of the offense satisfied the

first prong of the downgraded sentence test." Thus, "the failure

to consider additional mitigating factors is inconsequential."

Moreover, additional mitigating factors could not affect the

outcome of the second prong. "The reasons supporting the interest

of justice prong must be 'in addition to, and separate from' the

mitigating factors which substantially outweigh the aggravating

factors and thus satisfy the first prong." State v. Lake, 408

N.J. Super. 313, 325-26 (App. Div. 2009) (quoting Megargel, supra,

143 N.J. at 502). A defendant cannot satisfy the second prong by

"a restatement of the reasons underlying the various mitigating

factors" as that would be "contrary to Megargel's directive that

9 A-5123-14T4

the basis for the second prong must be separate and distinct from

the mitigating factors." Id. at 329 (finding the trial court

erred in considering facts "appropriate for consideration as

mitigating factors, and therefore applicable to the first prong,

[because] they have no application to the second prong"); see

Megargel, supra, 143 N.J. at 503 (reversing the sentencing court

because it "failed to identify any reasons, compelling or

otherwise, in addition to and separate from, the mitigating

factors, which would explain why the interest of justice demanded

a downgraded sentence").

Rather, "because the focus remains on the offense and not the

offender, the surrounding circumstances used as compelling reasons

for a downgrade should arise from within the context of the offense

itself." Lake, supra, 408 N.J. Super. at 326 (citing Megargel,

supra, 143 N.J. at 500). "[T]he severity of the crime remains the

single most important factor in considering whether the interest

of justice demands a downgrade." Ibid. "If the surrounding

circumstances of an offense make it very similar to a lower degree

offense, a downgraded sentence may be appropriate." Ibid. (citing

Megargel, supra, 143 N.J. at 500). Here, the trial court found

the nature of the crime was not akin to second-degree reckless

manslaughter because defendant was armed and shot the victims from

behind at close range without provocation.

10 A-5123-14T4

Nonetheless, defendant argues trial counsel could have argued

mitigating factor seven — his lack of an adult record — in the

second prong because the trial judge found mitigating factors

three and nine were sufficient to substantially outweigh the

aggravating factor and did not mention mitigating factor seven in

the first-prong balancing. However, defendant's argument that

"excess" mitigating factors can be used in the second prong would

add a third step to what the Supreme Court has ruled is a "two-

step test." Megargel, supra, 143 N.J. at 495-96. After finding

the aggravating and mitigating factors, the sentencing court would

have to find (1) "the mitigating factors substantially outweigh

the aggravating factors," then (2) determine whether any of the

mitigating factors were unneeded to substantially outweigh the

aggravating factors, and only then decide if, considering those

"excess" mitigating factors, (3) "the interest of justice must

demand the downgrade." Id. at 495.

In any event, no case has adopted defendant's proposed change

in the law. Trial counsel could not be "ineffective for not

anticipating a change in law — a change which [the Supreme] Court

has not indicated that it will adopt. . . . [T]here cannot be a

cognizable ineffective assistance claim when there is not yet a

recognizable legal basis for the motion that defendant says should

have been made." Harris, supra, 181 N.J. at 436. "In analyzing

11 A-5123-14T4

trial counsel's performance, we examine the law as it stood at the

time of counsel's actions, not as it subsequently develop[s]."

State v. Goodwin, 173 N.J. 583, 597 (2002).

Finally, defendant argues trial counsel was ineffective for

not reiterating at resentencing that the victims had shot at

defendant in the past, that defendant had been attacked with a

knife, and that he feared for his life due to threats. However,

trial counsel made those arguments successfully to the trial judge

at the original sentencing, those facts were in the presentence

report, and the same judge at resentencing expressly considered

the presentence report and the arguments of the defense. Moreover,

the judge reiterated at resentencing that defendant had been shot

at and threatened and "was afraid that the victim was going to

shoot him."

Finally, additional mitigating factors could not otherwise

affect defendant's sentence. At resentencing, he got the minimum

legal sentence absent a downgrade.

Accordingly, the PCR court properly found defendant failed

to "demonstrate a reasonable likelihood that his or her claim will

ultimately succeed on the merits," and thus did not establish "a

prima facie case" meriting an evidentiary hearing. See State v.

Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct.

140, 139 L. Ed. 2d 88 (1997).

12 A-5123-14T4

The PCR court noted Rule 3:22-2(c) limits the ability to

raise excessive sentencing claims on PCR and ruled defendant was

"attempt[ing] to raise an otherwise inappropriate issue for post-

conviction relief by appending it to an ineffective assistance of

counsel claim." The PCR court also noted defendant could have

raised the excessive sentencing claim on appeal. See R. 3:22-4.

We need not consider those procedural bars. However, we caution

defendants not to cloak displeasure with a sentence as an

ineffective assistance of counsel claim. If a defendant believes

his sentencing is excessive, direct appeal is the appropriate

avenue for relief.

Affirmed.

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