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State v. Akinola

July 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
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).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 On direct appeal, we affirmed the conviction and sentence in an unpublished opinion.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 ...


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