On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-08-0732.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Parker and Yannotti.
Defendant Dwayne Gillispie was charged under a Passaic County indictment with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (Counts 1 and 2); second degree sexual assault, N.J.S.A. 2C:14-2b (Count 3); third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts 4 and 5); fourth degree criminal sexual conduct, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1) (Count 6); first degree robbery, N.J.S.A. 2C:15-1 (Count 7); third degree terroristic threats, N.J.S.A. 2C:12-3a (Count 8); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count 9).
Defendant was found guilty on Counts 2, 7 and 8 and not guilty on Counts 1 and 9. The remaining counts were dismissed. The trial judge granted the State's motion for imposition of an extended term and sentenced defendant on Count 2 to a fifty-year custodial sentence, with an eighteen-year period of parole ineligibility. Count 7 was merged into Count 2 and on Count 8 the judge imposed a concurrent five-year term, with a two-year period of parole disqualification. Defendant's convictions and sentences were affirmed on direct appeal, State v. Gillispie, A-5060-98T4, (decided August 11, 2000), and the Supreme Court denied certification. 167 N.J. 86 (2001). Defendant filed a petition for post conviction relief (PCR) in October 2004, which was denied in an order entered on March 4, 2005. This appeal followed.
In this appeal, defendant argues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL In a supplemental brief submitted by defendant pro se, he argues:
DEFENDANT DID NOT RECEIVE THE REPRESENTATION GUARANTEED BY POST CONVICTION RULE REQUIRING ASSIGNED COUNSEL TO ADVOCATE A DEFENDANTS CLAIMS. POST-CONVICTION COUNSEL FAILED TO ADEQUATELY ADDRESS THE ISSUE THAT DEFENDANTS WAIVER OF MIRANDA RIGHTS WAS NOIT [SIC] KNOWING AND INTELLIGENT, WHEN THE DEFENDANT WAS NOT INFORMED AT THE TIME HE WAS ARRESTED AND TAKEN IN FOR QUESTIONING THAT NO WARRANT OR COMPLAINT HAD ISSUED BASED ON THE VICTIM STATEMENT
DEFENDANT WAS DENIED THE ASSISTANCE REQUIRED BY POST-CONVICTION COUNSEL AS PER. RULE 3:22-6. COUNSEL FAILED TO URGE THE INEFFECTIVENESS OF COUNSEL AT THE PRETRIAL STAGE AS PRETRIAL COUNSEL FAILED TO URGE THE DEFENDANT'S PRO SE PRETRIAL MOTION TO DISMISS COMPLAINT/WARRANT NO. W-1997-006438-1608. IN VIOLATION OF U.S.C.A. CONST. AMENDS. 4, 6 & 14: N.J.S.A. CONST. ART. 1 ...