On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Parrillo and Sabatino.
Defendant Shawn Sheffield appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). For reasons that follow, we vacate the NERA parole ineligibility term, remand for resentencing, and affirm in all other respects.
By way of background, following a jury trial, defendant was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts I and II); third-degree possession of a handgun, N.J.S.A. 2C:39-5(b) (Count III); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count IV). The court merged the armed robbery convictions and on Count I imposed a fifteen-year term with an 85% period of parole ineligibility pursuant to the pre-amendment No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also merged the weapons conviction on Count III into that on Count IV, imposing for that crime a concurrent seven-year term.
On appeal, we affirmed the judgment of conviction in a per curiam opinion, which recited the underlying facts as follows:
According to the State's proofs, on September 27, 2000, around 1:30 p.m., under the pretense of using a phone to call his girlfriend, defendant entered Jillane's Hair Salon on Central Avenue in East Orange, pointed a small silver handgun at Stephanie Smith, the manager of the store, and her daughter Lakisha Gordon, a hairstylist, told them not to scream and "you won't get hurt," and demanded that Smith and Gordon give him their money. There was none, so he ordered them to give him their jewelry. As Gordon began taking off her bracelets, defendant grabbed them and tore a necklace from Gordon's neck. He then demanded Smith's wedding ring. Taking the ring, defendant also snatched a necklace from Smith's neck.
Defendant then attempted to barricade Smith and Gordon into the bathroom of the hair salon by pushing a hydraulic styling chair in front of the door. He proceeded to search a closet next to the bathroom, remove a duffel bag therefrom, and exit the building. When Smith heard the front screen door close, she stood on the toilet in the bathroom and opened the window, from where she observed defendant turn left off of Central Avenue and disappear down the street. The two women were able to exit the bathroom and immediately called the police.
Two days later, Gordon was at the health clinic and recognized defendant sitting in the waiting room asleep. In fear, she called her mother, who immediately called the police. Smith then went to the clinic, meeting Gordon and the police there. Smith was certain that the man asleep in the chair at the clinic was the same man who robbed her and her daughter two days earlier. He was wearing the same exact clothing as the day of the robbery, with the exception of the coat over his sweater. He also had a scar on his nose similar to the robber. After defendant was arrested, Smith went to the police station and identified defendant by photograph as the man who had robbed her and Gordon.
After being advised of his Miranda rights, defendant gave a signed statement to the police admitting that he had robbed Smith and Gordon of jewelry [but denying he possessed a gun at that time]. He told East Orange Police Detective James Pitts that he had pawned the jewelry at a shop on Halsey Street in Newark for $230. Detective Pitts subsequently went to the Halsey Street Jewelers, and recovered some of the stolen jewelry. The owner of the jewelry store, Charles Roundtree, identified defendant as the individual who had sold him the chain, bracelets and rings belonging to the victims.
At trial, defendant recanted his statement to the police, denying that he robbed Smith and Gordon or had ever seen them prior to his arrest at the clinic. He also claimed the police never advised him of his Miranda rights, and denied giving them a statement. He explained his signature on both the waiver of rights form and confession by saying that he was experiencing heroin withdrawal at the time and therefore signed the papers so that he would be taken to the hospital as promised. The jury evidently rejected defendant's version and convicted him of the robbery and weapons charges.
[State v. Sheffield, No. A-3945-01 (App. Div. Apr. 3, 2003) (slip op. at 2-4), certif. denied, 177 N.J. 492 (2003).]
Following denial of his petition for certification, defendant timely filed a pro se PCR petition wherein he challenged the imposition of the NERA sentencing feature, and in an amended petition filed by counsel raised two other related issues, the latter phrased in terms of ineffectiveness of trial and appellate counsel for failing to object to the NERA jury instruction and failing to move for judgment of acquittal on the NERA charge, and raising the issue on appeal. Defendant's essential contention of an alleged illegal NERA sentence is based on his claim that the State failed to prove he used a "deadly weapon," i.e. an operable gun, which is a predicate to finding the commission of a violent crime necessary to trigger application of pre-2001 NERA, L. 1997, c. 117, § ...