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State v. Powell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TROY POWELL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 00-06-1134D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2008

Before Judges Coburn and Grall.

Defendant appeals from an order denying his petition for post-conviction relief. We affirm.

As a result of a robbery and aggravated assault, during which defendant shot the victim with a handgun, defendant was convicted of first degree armed robbery, N.J.S.A. 2C:15-1, third degree aggravated assault, N.J.S.A. 2C12-1(b)(2), and related offenses. He received an aggregate prison term of seventy years with thirty-five years to be served without parole. He appealed, we affirmed, and the Supreme Court denied certification. Thereafter, defendant filed the subject petition for post-conviction relief (PCR). He was assigned counsel and the petition was presented to Judge Donio, who entered the order from which defendant appeals.

We incorporate by reference the statement of facts in our decision rejecting defendant's direct appeal. State v. Powell, A-2999-01 (App. Div. December 17, 2003).

Defendant argues that his PCR attorney provided ineffective assistance of counsel because he failed to address in his brief or oral argument defendant's claim that he was forced to waive his right to counsel in the original trial. He also criticizes his attorney's failure to make an adequate argument with respect to the invalidity of his original sentence. In a pro se, supplemental brief, defendant reiterates the arguments contained in the brief filed on his behalf and complains in general about his PCR attorney's failure to review the record or confer with defendant.

Finally, he complains about the trial judge's charge on accomplice liability.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Donio in his decisions denying the petition and defendant's motion for reconsideration.

Nonetheless, we add the following brief comments.

Although defendant's attorney should have briefed and argued the point as raised by defendant, there was no prejudice since the judge carefully considered and rejected the claim. We add that our own review of the trial transcript reveals that the judge was painstakingly careful and thorough during the hearing on defendant's request to waive counsel. Furthermore, this issue should have been raised and resolved on appeal. However, again, there is no prejudice because the arguments fail to demonstrate any error whatsoever. The criticism of the charge on accomplice liability should also have been presented on appeal, had it any merit. But it has no merit. Contrary to defendant's assertion the charge clearly required an acquittal unless defendant himself acted with the appropriate state of mind.

Affirmed.

20080325

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