On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-12-2232.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and King.
On December 22, 1995 the Hudson County Grand Jury returned Indictment Number 12-95-2232 against defendant, Frank J. Anderson, Jr., charging him as follows: Count One, first-degree aggravated sexual assault by sexual penetration during the commission or attempted commission of a burglary, contrary to N.J.S.A. 2C:14-2a; Count Two, first-degree aggravated sexual assault by sexual penetration while armed with a weapon, contrary to N.J.S.A. 2C:14-2a; Count Three, second-degree sexual assault by sexual penetration with the use of physical force or coercion, contrary to N.J.S.A. 2C:14-2c; Count Four, third-degree aggravated criminal sexual contact during the commission or attempted commission of a burglary, contrary to N.J.S.A. 2C:14-3a; Count Five, third-degree aggravated criminal sexual contact while armed with a weapon, contrary to N.J.S.A. 2C:14-3a; Count Six, fourth-degree criminal sexual contact with the use of physical force or coercion, contrary to N.J.S.A. 2C:14-3b; Count Seven, second-degree burglary while armed with a deadly weapon, contrary to N.J.S.A. 2C:18-2; Count Eight, third-degree burglary, contrary to N.J.S.A. 2C:18-2; Count Nine, third-degree possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and Count Ten, fourth-degree possession of the knife under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to N.J.S.A. 2C:39-5d.
On August 5, 12, 13, 14 and 15, 1997 a trial was held before Judge Fuentes and a jury. Defendant made a motion for the entry of a judgment of acquittal at the end of the State's case which was denied. Defendant was found guilty on Counts Two, Three, Five, Six, Nine and Ten; the jury acquitted as to Counts One, Four, Seven and Eight.
On February 13, 1998 the judge merged Counts Three, Five and Six into Count Two and merged Count Nine into Count Ten. The judge sentenced defendant on Count Two, to a term of imprisonment of twenty years with a ten-year period of parole ineligibility and on Count Nine to a five-year term of imprisonment, concurrent with Count Two. Fines and penalties were also imposed.
Defendant, through the Office of the Public Defender, filed a notice of appeal. On December 6, 2000 this court affirmed defendant's convictions on all counts (A-5619-97T4); however, on an issue regarding use of defendant's Georgia conviction, this court rejected defendant's argument without prejudice to its resubmission on a petition for post-conviction relief. On March 27, 2001 defendant's petition for certification to the Supreme Court was denied. State v. Anderson, 167 N.J. 636 (2001).
On August 5, 2004 a hearing for post-conviction relief was conducted by Judge DePascale. On October 21, 2004 the petition for post-conviction relief was denied in an oral decision. Defendant now appeals this denial of his PCR petition. He raises two points in his initial brief:
POINT ONE - DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV; NJ CONST. ART. I, PAR. 10.
POINT TWO - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
In his supplemental pro se brief defendant raises these additional arguments:
POINT I - THE TRIAL COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUES WHERE A ...