STATE OF NEW JERSEY VS. LARRY AUSTIN (11-03-0410, HUDSON COUNTY AND STATEWIDE), A-5132-14T4

Background

In 2009 Kevin J. Evans (defendant) shot two people; one died and one survived. He was indicted on murder, attempted murder, aggravated assault, and weapons charges.
In 2010 Evans pled guilty pursuant to a plea agreement: Count One amended to first-degree aggravated manslaughter and Count Two to second-degree aggravated assault; State recommended concurrent terms subject to NERA.
The trial court originally sentenced below the first-degree range to 8 years (Count One) and concurrent 7 years (Count Two); the State appealed the downward sentencing.
This court reversed and remanded because the court had not applied the statutory downgrading standard (N.J.S.A. 2C:44-1(f)(2)); the judge resentenced Evans to 10 years (Count One) and concurrent 5 years (Count Two), both subject to NERA.
Evans sought post-conviction relief (PCR) in 2014 arguing excessive sentence and ineffective assistance of counsel for failures at resentencing; the PCR judge (who had been the sentencing judge) denied relief without an evidentiary hearing.
This appeal challenges denial of PCR, claiming entitlement to a hearing and asserting trial counsel failed to press additional mitigating factors (7, 8, 12) and otherwise perform effectively at resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Evans)	Held
Whether denial of an evidentiary hearing on PCR was proper	PCR record and filings failed to make a prima facie showing warranting a hearing	Trial counsel ineffective at resentencing; facts supporting inefficiency need development at a hearing	Denial affirmed: defendant failed to show a reasonable likelihood of success; no prima facie case for a hearing
Whether counsel was ineffective for not arguing mitigating factors 7, 8, 12	Additional factors would not change first-prong balancing or provide separate "compelling" reasons for downgrading	Counsel should have argued lack of adult record (7), circumstances unlikely to recur (8), and voluntary surrender/cooperation (12)	No prejudice: court already found mitigating factors 3 and 9 substantially outweighed aggravator; additional factors would not alter result
Whether counsel should have argued use of "excess" mitigating factors in the interest-of-justice prong	The Megargel two-prong test does not permit using excess mitigating factors as separate compelling reasons; no recognized legal basis existed to do so	"Excess" mitigating factors could support the second prong and counsel was ineffective for not making that argument	Rejected: adopting defendant’s approach would add a third step to Megargel; counsel cannot be ineffective for failing to predict a change in law
Whether counsel failed to reiterate factual defenses (victim threats/shots at defendant) at resentencing	The record and presentence report, and prior sentencing arguments, already placed those facts before the judge	Counsel did not sufficiently re-urge defensive facts at resentencing, which prejudiced mitigation	Rejected: trial counsel had previously argued those facts, the presentence report contained them, and the judge expressly considered them at resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)
State v. Fritz, 105 N.J. 42 (1987) (Strickland adopted in New Jersey)
State v. Harris, 181 N.J. 391 (2004) (de novo review of PCR court’s legal conclusions; counsel not ineffective for failing to anticipate unsettled law)
State v. Megargel, 143 N.J. 484 (1996) (two-prong standard for downgrading sentences under N.J.S.A. 2C:44-1(f)(2); need for separate, compelling reasons for "interest of justice" prong)
State v. Lake, 408 N.J. Super. 313 (App. Div. 2009) (compelling reasons for downgrade must arise from offense context and be separate from mitigating factors)
State v. Read, 397 N.J. Super. 598 (App. Div. 2008) (limitations on the weight of juvenile adjudications and cooperation as a mitigating factor)
State v. Marshall, 148 N.J. 89 (1997) (prima facie standard for entitlement to evidentiary hearing on PCR)
State v. Goodwin, 173 N.J. 583 (2002) (evaluate counsel’s performance by law as it stood at the time of the conduct)
State v. Dalziel, 182 N.J. 494 (2005) (examples of cooperation that qualify for mitigating factor 12)