On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 95-05-1815 and 95-05-1816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 9, 2006
Before Judges Axelrad and R.B. Coleman.
Defendant Craig Reid appeals from an order denying his petition for post-judgment relief (PCR), following an evidentiary hearing, alleging ineffective assistance of trial counsel in failing to advise him of exposure to an extended term sentence, which led him to reject an informal plea offer of forty years with twenty years of parole ineligibility, and claims the evidentiary hearing was inadequate and unduly limited by the trial court. Defendant also challenges the admission of evidence of prior crimes, particularly the repeated references to his prior robberies. He also contends the imposition of a life term with a twenty-five-year term of parole ineligibility for the first-degree conviction and the consecutive fifty-year term with the twenty-five-year term of parole ineligibility for the first-degree robbery conviction was illegal and constitutionally infirmed under State v. Natale, 184 N.J. 458 (2005), his aggregate sentence constitutes cruel and unusual punishment, and his trial and appellate counsel provided ineffective assistance by failing to raise constitutional errors in his sentence. We are not persuaded by any of these arguments and affirm.
On July 1, 1996, a jury found defendant guilty, on a twenty-three count indictment, of armed robbery, kidnapping, weapons offenses, aggravated assault, burglary, making terroristic threats and, on a separate indictment, of possession of a firearm by a convicted felon. Defendant was sentenced on August 5, 1996. According to the sentencing transcript and both counsel, the judge intended to impose an aggregate sentence of a life term plus fifty years, with a fifty-year period of parole ineligibility. However, the judgment of conviction reflected a life term plus fifty-five years, with a 110-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We affirmed defendant's conviction and remanded solely to correct the judgment of conviction to conform to the sentence intended by the trial judge. State v. Reid, Nos. A-2697-96, A-2707-96 (App Div. Dec. 22, 1998). On March 29, 1999, the Supreme Court denied certification. State v. Reid, 160 N.J. 91 (1999). Defendant prepared a pro se petition for PCR relief on July 25, 2001, which was apparently filed for him by Anthony J. Cariddi, Esquire, on August 7, 2001. The Public Defender filed a supplemental petition on defendant's behalf on March 26, 2003.
Despite opposition by the State arguing the petition was untimely, Judge Petrolle, who had also been the trial judge, heard defendant's PCR petition on the merits and granted defendant an evidentiary hearing. The judge heard testimony from defendant, his mother and defendant's trial counsel. The judge also had available to him the trial transcripts, as well as the transcript of the December 4, 1995 pretrial hearing in which defendant acknowledged he was facing "about 30 to life." Following oral argument on January 31, 2005, the judge denied defendant's PCR application. As to the ineffective assistance claim, Judge Petrolle determined that trial counsel did not give defendant erroneous advice concerning the extended term or penal exposure. The judge found the State had not made a plea offer, but even if a formal offer had been made, defendant chose to go to trial and pursue a diminished capacity defense with full knowledge of his potential exposure. The PCR judge also rejected defendant's argument that the trial court's denial of his motion to exclude N.J.R.E. 404(b) evidence of prior robberies denied him a fair trial, as defendant's mental state and capacity were at issue in the case. Moreover, that exact issue had been previously raised and rejected on direct appeal, as were the other arguments raised by PCR counsel as to the ineffective assistance of trial counsel respecting challenges to his conviction and sentence. R. 3:22-5. Finally, the judge found no Sixth Amendment violation created by the consecutive sentences under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004).
After carefully reviewing the record, we are satisfied defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Rather than dismissing defendant's PCR petition as time-barred under Rule 3:22-12, Judge Petrolle heard defendant's petition on the merits and afforded him the opportunity of a fair and adequate evidentiary hearing. Giving due deference to the trial judge's opportunity to hear and see the witnesses, we are satisfied there is ample evidence in the record to support his factual findings and that he applied the appropriate law. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Defendant did not prove ineffective assistance of trial or appellate counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987). As the judge noted, most, if not all, of the challenges to the conviction and sentence were raised and rejected on direct appeal, and are thus barred from further assertion. R. 3:22-5. Finally, as defendant concedes, the use of consecutive sentencing, does not violate the Sixth Amendment, State v. Abdullah, 184 N.J. 497 (2005). Moreover, State v. Natale, 184 N.J. at 494 does not provide pipeline retroactivity to defendant's direct appeal that was decided on December 22, 1998.
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