On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-10-0569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C. S. Fisher.
Defendant appeals from the denial of his petition for post-conviction relief. At a jury trial he had been convicted of armed robbery and, in a separate proceeding before the judge, of possession of a handgun by a convicted felon. He was sentenced to life imprisonment without parole eligibility under the "Persistent Offenders Accountability Act" ("Three Strikes and You're In"), N.J.S.A. 2C:43-7.1(a), and a concurrent sentence for the weapons offense. On direct appeal we rejected his challenge to the identification instructions under the plain error rule. We found no problem with respect to the fact that the charge was not tailored to the facts and there was no cross-racial identification instruction. Moreover, there was testimony by a social psychologist with respect to the impact of cross-racial identification.
Of significance, on direct appeal defendant also argued that he received ineffective assistance of counsel because his motion to suppress was "withdrawn . . . at the close of the evidence." The judge confirmed the withdrawal with defendant himself, but we expressly permitted the development of this subject on PCR.
With respect to the sentence, defendant contended on the direct appeal that the State had not demonstrated that his 1983 conviction was for a first degree robbery, and we concluded the record was not adequate to sustain the sentence. We thus remanded for further proceedings.
Certification was denied. Two days thereafter the defendant was resentenced under N.J.S.A. 2C:43-7.1(b)(2) to fifty years with twenty-five years before parole eligibility for the armed robbery. Thereafter we concluded that the notice under the "Three Strikes" law would suffice to permit the imposition of the extended term imposed under N.J.S.A. 2C:43-7.1(b)(2) (extended term for a defendant previously convicted of a first degree and second degree robbery), but that the defendant, pursuant to our prior remand, was entitled to notice of an application under N.J.S.A. 2C:43-7.1(a), and that no additional notice was given prior to the sentencing on remand. In other words, no notice was given on the remand with respect to either an application under -7.1(a) or under the statutes for which the remand sentence was imposed, -7.1(b). We stated that "if the State seeks imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1, it shall give written notice of that application, as required by N.J.S.A. 2C:43-7.1(d) and R. 3:21-4(f) within fourteen days" of our opinion (which was filed on April 24, 2003).
On June 25, 2003, defendant was again sentenced to fifty years with twenty-five years to be served before parole eligibility. On the third appeal decided June 28, 2005, we affirmed the sentence, based on the law as it then stood. There is no evidence that a petition for certification was subsequently filed.
We have recently held that a defendant may raise on post-conviction relief a claim that he did not understand a position taken by counsel and would not have consented to it if he fully understood. See State v. Allen, 398 N.J. Super. 247, 256-57 (App. Div. 2008). Here, there are serious questions about the reason defense counsel consented to the withdrawal of the motion to suppress after an evidentiary hearing. The record before us does not indicate any benefit to defendant by so doing.
However, the record before us does not contain a sufficient showing that defendant did not consent*fn1 and that the motion would have been granted, so as to warrant even an evidentiary hearing in support of his petition. See State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, as the PCR judge noted "the motion to suppress [was] correctly going to be denied," and "it would not have been granted." Accordingly, there is no showing that the conduct of counsel could have affected the result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52, 61 (1987).
As no sentence above the former presumptive term was imposed for the armed robbery on the third remand, there is no illegal sentence requiring further relief. See N.J.S.A. 2C:44-1f(1). Moreover, by the time State v. Natale, 184 N.J. 458 (2005), was filed, no appeal was still pending and no direct appeal was still in the "pipeline." See also State v. Thomas, 188 N.J. 137, 152 (2006).*fn2 Furthermore, a PCR is not the vehicle to consider a claim of excessive sentence. State v. Flores, 228 N.J. Super. 586 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); R. 3:22-2(c).
The denial of the post-conviction relief ...