On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-1404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 28, 2007
Before Judges Payne and Messano.
Defendant, Albert Smallwood, appeals from an trial court order denying his petition for post-conviction relief (PCR) without a hearing. On appeal, he raises the following arguments:
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED BECAUSE INEFFECTIVE ASSISTANCE OF COUNSEL MANDATED THAT HIS SENTENCE BE VACATED AND HIS MATTER BE REMANDED FOR RESENTENCING.
A. Counsel Failed To Present An Adequate Disparity Argument At Resentencing.
B. Counsel Failed To Request An Updated Presentence Report For Defendant's Resentencing.
After reviewing defendant's arguments in light of the record on appeal and applicable precedent, we affirm.
Defendant was convicted by a jury in 2001 of first-degree conspiracy to commit armed robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; first-degree carjacking, in violation of N.J.S.A. 2C:15-2; fourth-degree possession of a weapon, a baseball bat, under circumstances not manifestly appropriate for its lawful use, in violation of N.J.S.A. 2C:39-5d; third-degree attempted theft of a motor vehicle, in violation of N.J.S.A. 2C:5-1 and 2C:20-3; and the lesser-included offense of purposely or knowingly causing bodily injury with a deadly weapon, in violation of N.J.S.A. 2C:12-1b(2). The jury did not find grounds for imposition of the period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Evidence at trial demonstrated that defendant was a planner and get-away driver for a Middlesex County armed robbery and an attempted carjacking, in which the victim was viciously beaten with a BB-gun by Alvin Blankson and with an aluminum baseball bat by Payee Dayee, as well as being kicked in the ribs. Defendant was the owner of the bat. The victim's injuries included three broken ribs, a punctured lung, and a head laceration requiring stitches. Following the attack, she was placed in an intensive care unit for four days and was hospitalized for approximately one week. The carjacking was unsuccessful, since neither Blankson nor Dayee was able to operate the car's manual transmission. Both Blankson and Dayee pled guilty to various crimes and testified against defendant at trial, as did Tarrion Togbah and Sundaygar Edwards, two juveniles who also were occupants of the get-away car. All participants in the crimes with the exception of defendant entered pleas of guilty to various charges prior to defendant's trial.
Following trial, defendant was given concurrent custodial sentences of fifteen years for the armed robbery and twenty-five years with ten years of parole ineligibility for the carjacking. The remaining charges were merged and dismissed. In sentencing defendant, the trial judge considered the sentences imposed upon the crimes' other perpetrators who had pled guilty, determining that there "should be some parity between the sentences of Mr. Smallwood and Mr. Blankson since the court has come to the conclusion that they were the two leaders and the people who were most involved in this."
However, the judge recognized that Blankson's case differed somewhat because he had taken advantage of a plea offer, whereas defendant had chosen to go to trial, as was his right, and was subject to the jury's verdict. Blankson, the judge stated, had been sentenced to twenty years in custody, subject to the eighty-five percent parole ineligibility period of NERA, after pleading guilty to two charges of carjacking: the one in Middlesex and one in Union County.*fn1 Dayee, a juvenile with no prior convictions, had been sentenced to twelve years, subject to NERA. The two other juveniles, whose involvement in the crimes was more marginal, had received lesser sentences. Togbah had received a sentence of five years, and Edwards had been sentenced to two years in custody.
On appeal, defendant's arguments with respect to his conviction were rejected. State v. Smallwood, No. A-527-01T4 (App. Div. April 11, 2003).*fn2 However, his case was remanded for resentencing because of the court's consideration of an inapplicable aggravating factor. A disparate sentencing ...