On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-12-3138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2007
Before Judges Skillman and Winkelstein.
A jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2). The trial court sentenced defendant to life imprisonment. The court also found defendant's conviction to be subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and directed that defendant serve 85% of his sentence before eligibility for parole.
We affirmed defendant's conviction in an unreported opinion. State v. Sierra, No. A-5244-98T4 (Nov. 5, 2001). However, we determined, in accordance with State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd, 168 N.J. 113 (2001), that defendant's life sentence was not subject to NERA. Therefore, we vacated the parole ineligibility component of defendant's sentence and remanded the case for resentencing. On the remand, the trial court imposed a thirty-year period of parole ineligibility upon defendant. The Supreme Court denied defendant's petition for certification. 171 N.J. 340 (2002). Defendant filed a timely petition for post-conviction relief. Judge Connor, who had also been the trial judge, denied the petition by an oral opinion delivered on June 23, 2006. On appeal, the Public Defender filed a brief on defendant's behalf, which presents the following arguments:
I. JUROR INATTENTION TO THE MATERIAL TESTIMONY OF A KEY WITNESS CANNOT BE CURED BY A READBACK OF THE TESTIMONY, THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
II. THE TRIAL COURT'S CHARGE IMPERMISSIBLY ALLOWED THE JURY TO CONVICT THE DEFENDANT OF MURDER WHERE IT DETERMINED THAT A HOMICIDE OCCURRED REGARDLESS OF WHETHER SELF-DEFENSE WAS JUSTIFIED.
III. THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT ADDRESS EITHER THE ISSUE OF THE INATTENTIVE JUROR OR THE IMPERMISSIBLE JURY CHARGE, BOTH OF WHICH DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
We reject these arguments substantially for the reasons set forth in Judge Connor's oral opinion. In addition, defendant filed a supplemental pro se brief, which argues that the counsel assigned to represent him on his petition provided ineffective assistance because he failed to advance grounds for post-conviction relief that defendant insisted he present. At our request, the State filed a second answering brief to this supplemental brief.
Rule 3:22-6(d) provides in pertinent part:
Counsel [assigned to represent a defendant on a petition for post-conviction relief] should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.
Interpreting this rule, the Court stated in State v. Rue, 175 N.J. 1, 19 (2002):
[C]counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate ...