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State v. Mitchell

November 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAMIEN MITCHELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-04-0851.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Stern and A. A. Rodríguez.

Defendant Damien Mitchell appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In 2001, defendant was convicted, following a jury trial, of: third degree possession of crack cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 1); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count 2); third degree possession of CDS on or within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (count 3); third degree distribution of CDS, N.J.S.A. 2C:35-5b(3) (count 4); and third degree distribution of CDS on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count 5). Defendant moved for a new trial. The judge denied the motion, merged the first four counts into count 5, and imposed a five-year term of imprisonment with a three-year parole disqualifier. We affirmed on direct appeal. State v. Mitchell, No. A-2029-01T4 (App. Div. June 16, 2003), certif. denied, 178 N.J. 34 (2003). The charges stem from a controlled sale by defendant to two undercover police officers on December 7, 1998. At trial, defendant presented an alibi defense to establish that defendant was at work that day until 4:30 p.m. and, therefore, he could not have participated in the alleged sale, which occurred at 4:30 p.m.

Defendant filed pro se a first PCR petition. Counsel was appointed to represent him. Designated PCR counsel filed a brief on defendant's behalf. After hearing oral argument, the same judge who presided at trial ruled that an evidentiary hearing was not necessary and denied the petition.

On appeal, defendant contends that he "should not be procedurally barred from raising these claims as a manifest injustice has been committed against him and he can only vindicate these claims through a post[-]conviction relief proceeding." We note that the judge did not deny the petition based on a procedural bar. Therefore, we will address the merits of his claims.

Defendant also contends:

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT.

A. Defendant Was Denied Effective Assistance of Counsel When His Trial Counsel Failed to Subpoena The Defendant's Supervisor As A Witness To Testify On The Time Card Issue.

B. Defendant Was Denied Effective Assistance Of Counsel When His Trial Counsel Did Not Advise The Defendant On Matters Paramount To A Successful Defense.

C. Trial Counsel Was Ineffective By Not Highlighting The Inconsistencies In The Testimony Of The Police Officers.

D. Defendant Was Denied Effective Assistance Of Counsel When His Trial Counsel Did Not Adequately Investigate Matters Central To The Defense Or ...


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