On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 01-01-0134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and A.A. Rodríguez.
Defendant was convicted of armed robbery, unlawful possession of a firearm and possession of the firearm for unlawful purpose.*fn1 He was sentenced on November 22, 2002 to sixteen years in the custody of the Commissioner of the Department of Corrections with 85% to be served before parole eligibility under the No Early Release Act (NERA) for the first-degree armed robbery, and to a concurrent term of eight years for the possession for unlawful purpose.*fn2 The permit violation was merged into the possession for unlawful purpose violation.
The facts are developed in our opinion on the direct appeal. A struggle occurred during the robbery, and defendant was shot. His clothes were apparently lost after he was taken to the hospital. There was contradictory testimony at trial "as to whether the bullet which caused defendant's injuries actually entered through the chest and exited through his back, or entered his back and exited through his chest." Defendant's expert testified that the "unavailability of defendant's clothing prevented him from reaching an opinion with certainty about the entry and exit wounds." The significance of this testimony was that defendant contended that the victim of the robbery "possessed the gun in the first instance, . . . was the aggressor, and [defendant] the innocent victim." Where the bullet entered the defendant's body may have been relevant with respect to that subject.
We affirmed the conviction over defendant's challenge to the jury charge. The trial judge had stated at the sentencing proceeding that the possession for unlawful purpose conviction merged but had not merged it in the judgment. However, she merged the permit violation.*fn3 We affirmed the conviction and sentence for the armed robbery but remanded for a determination of the merger of the possession for unlawful purpose conviction.
Defendant then petitioned for post-conviction relief. He apparently never moved to correct the sentence with respect to merger, as such, nor did the sentencing judge apparently address merger on remand.
On this appeal from the denial of PCR, defendant contends that "appellate counsel's representation fell below a reasonable objective standard [of] effective representation when he failed to argue that the indictment upon the defendant was palpably defective." Apparently defendant had moved to dismiss the indictment before trial because there were no fingerprints on the gun and the clothes were lost. The motion was not decided if made. Defendant now argues that appellate counsel was ineffective for failing to argue that the indictment should have been dismissed on that basis. The question relates to a matter of proof, and not a defect in the indictment. Moreover, our opinion on the direct appeal with respect to the jury instructions and expert testimony suggests that the lost clothing did not make a difference in 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 (1987). The PCR judge (who was not the trial judge) recognized that fact and also stated that the entry point of the bullet, as might be indicated on the clothing, would be inconsequential because "it was a fight in close quarters and the direction of the bullet was not determinative of who was the aggressor and who was the victim."
Defendant also contends that counsel should have raised a Blakely*fn4 issue on the direct appeal and if he had done so, the issue would have been preserved for retroactivity purposes under State v. Natale, 184 N.J. 458 (2005). The "pipeline" retroactivity principles under Natale are not applicable to his case, and we find no ineffective assistance of counsel because a Blakely issue was not raised at sentencing in 2002, or when this case was briefed on appeal resulting in the February 2004 decision.*fn5 Counsel was not ineffective for not raising a Blakely issue before Blakely was decided. We are not prepared to say that the issue in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), presented a similar issue as to require a challenge to the sixteen-year sentence in this case on a constitutional basis, and the retroactivity holding of Natale suggests the same.
The order denying PCR is affirmed substantially for the reasons expressed by Judge Francis B. Schultz in his oral opinion of April 5, 2006, as supplemented herein.