July 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KOLE AKINOLA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No.00-06-757 (A-0447-05T4) and Essex County, Indictment No. 99-08-3743 (A-4331-05T4).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges Fuentes and Graves.
Defendant Kole Akinola appeals from the order of the trial court in Docket No. A-4331-05 denying his post-conviction relief (PCR) petition. Defendant pled guilty to four separate crimes, charged in four separate indictments. The charges included possession of cocaine with intent to distribute, within 1,000 feet of school property, N.J.S.A. 2C:35-7; and second-degree robbery, N.J.S.A. 2C:15-1. He received an aggregate sentence of ten years imprisonment, with three years of parole ineligibility.
Prior to the imposition of sentence, defendant moved to set aside his guilty plea, arguing that his defense attorney had not fully advised him of the penal consequences of his plea. The trial court denied the motion. On direct appeal, we affirmed the conviction and sentence in an unpublished opinion. State v. Akinola, No. A-867-02 (App. Div. Feb. 9, 2004). The Supreme Court denied certification. State v. Akinola, 185 N.J. 266 (2005).
Defendant filed his first pro se PCR petition on August 12, 2004. He soon filed two amended petitions. Thereafter, assigned counsel filed another PCR petition, together with supporting legal memorandum. In these various petitions, defendant premised his request for relief on the alleged ineffective assistance of his defense counsel, both at the trial and appellate level.
At the hearing to consider the petition, in addition to defense counsel, Judge Isabella permitted defendant to argue on his own behalf. No testimony was taken from any witness, including defendant himself. In a memorandum of opinion dated March 7, 2006, Judge Isabella denied the PCR petition. Defendant now appeals raising the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S PETITION FOR POST CONVICTION RELIEF OR, IN THE ALTERNATIVE, IN FAILING TO AFFORD HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO ADEQUATE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVELS.
A. FACTUAL INTRODUCTION
B. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
C. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL RESPRESENTATION BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO APPROPRIATELY ADVISE HIM OF THE AFFIRMATIVE DEFENSE AVAILABLE PURSUANT TO N.J.S.A. 2C:35-7 RELATING TO COUNT IV OF INDICTMENT NO. 99-7-2621-I AS WELL AS BY APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE ON APPEAL.
D. ASSUMING THE TRIAL COURT DID NOT ERR IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THE BASIS THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVELS, THE COURT ERRED BY FAILING TO AFFORD THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS IN THIS REGARD.
E. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTIOM RELIEF SINCE THE DEFENDANT NEVER PERSONALLY CONSENTED TO THE AMENDED CHARGE OF POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE ARISING OUT OF COUNT IV OF INDICTMENT NO. 99-6-2289-I.
POINT II NEITHER OF DEFENDANT'S CONTENTIONS RAISED IN HIS PETITION FOR POST CONVICTION RELIEF WERE PROCEDURALLY BARRED AND COULD PROPERLY BE DETERMINED ON THEIR SUBSTANTIVE MERITS.
In his pro se supplemental brief, defendant argues:
POINT I THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION BY FAILING TO FIND THAT DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON BOTH HIS PRESENTENCE MOTION TO VACATE THE GUILTY PLEAS AND ON HIS DIRECT APPEAL.
A. RESPECTIVE COUNSELS WERE BOTH INEFFECTIVE FOR FAILING TO IDENTIFY THAT DEFENDANT NEVER ENTERED ANY GUILTY PLEA TO COUNT 11 OF INDICTMENT 99-6-2289 CHARGING POSSESSION OF NARCOTICS AND THAT THE ENSUING CONVICTION SHOULD BE VACATED BECAUSE THE CHARGE WAS UNLAWFULLY ADJUDICATED BY A DIRECTED VERDICT THAT VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS.
B. RESPECTIVE COUNSELS WERE BOTH INEFFECTIVE FOR FAILING TO CHALLENGE THE GUILTY PLEA TO INDICTMENT 99-7-2621 ON THE GROUND THAT RATHER THAN SUPPORT A CONVICTION UNDER N.J.S.A. 2C:35-7, DEFENDANT'S FACTUAL BASIS INSTEAD SATISFIED THE STATUTE'S AFFIRMATIVE DEFENSE.
Defendant's arguments are barred by Rule 3:22-5, because they were previously reviewed and rejected on the merits in his direct appeal. We thus affirm substantially based on the reasons expressed by Judge Isabella in his memorandum of opinion.
We next address defendant's appeal in Docket No. A-0447-05. Defendant pled guilty to theft by deception, N.J.S.A. 2C:20-4, and attempted theft by deception, N.J.S.A. 2C:51a(7) and N.J.S.A. 2C:20-4. He was sentenced to two concurrent terms of four years, to be served concurrent with a ten-year sentence he was then serving.
Thereafter, he moved to set aside his guilty plea, arguing that he expected that the two convictions would be merged at the time of sentencing. The trial court denied the motion. On direct appeal, we remanded for the trial court to conduct an evidentiary hearing to determine whether defendant should be permitted to withdraw his guilty plea, because there is a material difference between a merger of offenses, and receiving two concurrent terms. State v. Kole Akinola, No. A-6110-02 (App. Div. March 17, 2005).
On remand, prior to the commencement of the evidentiary hearing, the trial court granted the State's motion to dismiss the conviction for attempted theft by deception, N.J.S.A. 2C:51a(7) and N.J.S.A. 2C:20-4. The court thereafter re- sentenced defendant on the remaining theft by deception, N.J.S.A. 2C:20-4, imposing the original four-year term. Defendant now appeals raising the following argument:
POINT I THE TRIAL COURT FAILED TO CONDUCT A HEARING AS ORDERED BY THE APPELLATE DIVISION IN ORDER TO ASCERTAIN WHETHER THE FAILURE TO EXPLAIN THE DOCTRINE OF MERGER TO DEFENDANT RENDERED HIS GUILTY PLEA UNKNOWING AND INVOLUNTARY AND, AS SUCH, SUBJECT TO RETRACTION. THE FAILURE TO HAVE THIS HEARING WAS IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
Defendant argues in his pro se supplemental brief:
POINT I THE TRIAL COURT'S DISMISSAL OF COUNT 4 DOES NOT CURE THE PREJUDICE SUFFERED BY DEFENDANT BECAUSE THE CHARGE HAD ALREADY BEEN CONSIDERED BY THE STATE PAROLE BOARD PRIOR TO ITS DISMISSAL AND THE TRIAL COURT PRECLUDED THE DEFENDANT FROM PRESENTING THIS ISSUE AT AN EVIDENTIARY HEARING AS ORDERED BY THE APPELLATE DIVISION.
Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The dismissal of the attempted theft by deception conviction renders the issue of the evidentiary hearing moot.