On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-03-0438 and 97-11-1467-Z.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Axelrad and Messano.
Defendant Vaughn Beamon appeals the May 11, 2006, order that denied his petition for post-conviction relief (PCR). We begin by reciting the procedural history leading up to the May 24, 2004, filing of defendant's pro se petition.
Defendant was charged in Middlesex County Indictment 97-11-01467 with unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a; four counts of armed robbery in the first degree, N.J.S.A. 2C:15-1; and eluding in the second degree, N.J.S.A. 2C:29-2b. The armed robberies included in the indictment were all alleged to have occurred on September 19, 1997.
Defendant was also charged in Monmouth County Indictment 98-03-0438 with eight counts of armed robbery in the first degree, N.J.S.A. 2C:15-1; eight counts of unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5b; and eight counts of possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a. The armed robberies and related weapon offenses were all alleged to have occurred between February 12, 1997, and August 29, 1997.
The indictments were consolidated for disposition, and on August 24, 1998, defendant appeared in Monmouth County on the charges. Pursuant to a negotiated plea agreement, defendant pled guilty to the eight counts of the Monmouth County indictment and the four counts of the Middlesex County indictment that charged him with armed robbery. The remaining counts of both indictments were to be dismissed.
Two of the Monmouth County armed robberies and all four of the Middlesex County armed robberies occurred after the passage of the No Early Release Act (NERA)*fn1 , and thus subjected defendant to a mandatory period of parole ineligibility equal to eighty-five percent of his sentence. The State, however, agreed to a sentencing recommendation that in large measure avoided NERA's consequences. It agreed that defendant would receive a total aggregate sentence of forty years, twenty of which would be served without parole, on his guilty pleas to three of the nonNERA armed robberies. All other sentences would run concurrently with each other and concurrent to the sentences imposed on these three counts.
The defendant then entered his guilty pleas, and our review of the transcript of the proceedings reveals they were entered knowingly, voluntarily, and with a full understanding of the consequences. On November 5, 1998, defendant was sentenced in accordance with the plea bargain.
Defendant's direct appeal was limited solely to the question of whether his sentence was excessive. By order entered July 27, 1999, we denied defendant's appeal. Defendant's petition for certification to the Supreme Court was denied by order dated January 28, 2000.
In his pro se PCR petition, defendant argued he was "not indicted by an independent and informed grand jury," that he was denied the effective assistance of counsel, and that he was "improperly interrogated without counsel after his indictment," in violation of State v. Sanchez, 129 N.J. 261 (1992). In a supplemental brief filed by appointed counsel, defendant argued both trial counsel and appellate counsel provided ineffective assistance because they 1) "fail[ed] to procure a formal examination of [defendant's] competency"; and 2) "fail[ed] to properly consult with [defendant] to prepare a defense." He also reiterated the points raised in his earlier pro se filing regarding the grand jury indictment and the police interrogation.
As to the issue of defendant's competency, PCR counsel asserted that defendant's cocaine use was "out of control" at the time of the robberies and that his habit was the result of defendant's brother's murder and the untimely death of his sister. Counsel claimed defendant "may have had a valid defense of diminished capacity."
The parties appeared before Judge Edward M. Neafsey on May 10, 2006, for oral argument on defendant's petition. Acknowledging that "trial counsel skillfully made it so that [defendant] was not subject to NERA," PCR counsel nevertheless contended that trial counsel was ineffective because he consulted with defendant for only "a half an hour prior to the actual entering of the plea." Counsel argued that if defendant had had more time "to communicate further with his attorney," he would have been able to raise a "viable Miranda issue."*fn2 This, he claimed, was based upon the fact that defendant had been bitten by a police dog at ...