On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, Ind. No. 01-06-0807.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Grall and Chambers.
Defendant, Daniel Powell, was convicted of second degree eluding, N.J.S.A. 2C:29-2(b) (count one), and third degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five). In this appeal, defendant seeks reversal of the denial of his petition for post-conviction relief and a remand for an evidentiary hearing. With respect to the ineffective assistance of counsel claims addressed by the court below, an evidentiary hearing is unwarranted, and the decision below is affirmed. However, we remand for a ruling on defendant's pro se brief, and a ruling on three additional points raised by post-conviction relief counsel that were not addressed below.
The convictions arose out of events that transpired on the evening of January 21, 2001, when defendant remained in his car which was backed into his sister's driveway in Lakewood, New Jersey. Having observed defendant in the car for an extended period of time, the police officers patrolling the area went to the vehicle, obtained defendant's identification and confirmed with his sister that he had her permission to be there. The officers then asked defendant to exit the car. At this point, the car shot forward, went down the driveway, struck a police vehicle parked by the end of the driveway, and continued into the street. Defendant maintains that he was so upset about the police intrusion that he did not realize the car was in gear and, when it started to roll forward, he inadvertently stepped on the accelerator instead of the brake, and the car moved forward. Officer Clarke fired three shots at the fleeing vehicle. The Officer was later disciplined for this excessive use of force. Defendant fled in the car, and a four police car high speed chase ensued. Defendant maintains that he fled due to fear for his safety generated by the shots fired at the car. Defendant was able to escape to a cemetery where he left the vehicle. He maintains that he then flagged down a police car and surrendered. The arresting police officer testified that defendant had initially tried to avoid apprehension. When police then searched defendant's car, they found 3.2 grams of crack cocaine in a cigarette box and 8.1 grams of crack cocaine in clothing located in the trunk of the car.
On February 27, 2003, the jury found defendant guilty of second degree eluding, N.J.S.A. 2C:29-2(b) (count one) and third degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five). He was acquitted of two counts of third degree aggravated assault, N.J.S.A. 2C:12-1(b) (2) (counts two and three), and fourth degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count four). The jury could not reach a verdict on third degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count six), and that count was later dismissed. On April 11, 2003, defendant was sentenced to ten years imprisonment with four years of parole ineligibility on count one and a concurrent five years imprisonment on count five, plus the requisite fines and penalties. His driver's license was suspended for one year on count one and six months on count five.
On appeal to this court, the convictions and sentences were affirmed. State v. Powell, No. A-5905-02T4 (App. Div. July 21, 2004) (slip op. at 4), certif. denied, 182 N.J. 428 (2005). Thereafter, on April 7, 2006, defendant's motion for post-conviction relief was denied. This appeal followed.
In this appeal, defendant raises the following issues:
The PCR Court erred in denying defendant an evidentiary hearing.
The PCR Court erred in denying the petition for post-conviction ...