On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-06-1003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Cuff and Lisa.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. The jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count two); second-degree robbery, N.J.S.A. 2C:15-1a(1) (count three); second-degree robbery, N.J.S.A. 2C:15-1a(3) (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2a (count five). On June 2, 2000, Judge Isman imposed sentence. He merged count two with count one and count four with count three. He sentenced defendant on count one to twenty years imprisonment with an 85% parole disqualifier and five years parole supervision, pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), and community supervision for life. He imposed concurrent terms of ten years and five years imprisonment on counts three and five respectively. In an unreported decision, State v. Ward, No. A-6918-99T4 (App. Div. Dec. 13, 2001), we affirmed defendant's conviction. The Supreme Court denied defendant's petition for certification on March 6, 2002. State v. Ward, 171 N.J. 443 (2002).
On June 23, 2005, five years and twenty-one days after entry of the judgment of conviction, defendant filed his PCR petition. Defendant's PCR counsel filed a letter brief raising the following arguments:
The sentencing of defendant to an extended term was based on facts not found by a jury violating Defendant's Sixth Amendment Rights and State v. Natale.
Defendant was prejudiced when trial counsel failed to move to compel complete DNA testing which may have exonerated Defendant.
Defendant's PCR counsel also filed a supplemental brief raising the following additional arguments:
I. TRIAL COUNSEL WAS INEFFECTIVE ENTITLING DEFENDANT TO A NEW TRIAL OR, ALTERNATIVELY A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL HAS BEEN PRESENTED COMPELLING AN EVIDENTIARY HEARING ON THIS ISSUE.
II. EXTENSIVE TRIAL ERRORS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
III. DEFENDANT'S SENTENCE WAS EXCESSIVE.
IV. THE PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
The PCR petition was heard on September 8, 2006 by Judge Isman, who also presided over defendant's trial. Although the petition was filed more than five years after the judgment of conviction and some of the issues raised in the petition were or could have been raised on direct appeal, the judge declined to deem the petition time-barred, see Rule 3:22-12, or procedurally barred, see Rules 3:22-4 and -5, and ...