July 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DELRICE CUNNINGHAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-05-2258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2008
Before Judges Fuentes and Waugh.
Defendant Delrice Cunningham appeals from the order of the Law Division Criminal Part denying his petition for post conviction relief (PCR). Defendant pled guilty pursuant to a negotiated plea agreement to murder, N.J.S.A. 2C:11-3(a)(1)-(2), first-degree carjacking, N.J.S.A. 2C:15-2, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). When questioned at the plea hearing, defendant testified that he shot and killed his victim because he felt "scared." He admitted, however, that the victim was not armed at the time. The State's evidence also included the potential testimony of the victim of the carjacking.
Consistent with the plea agreement, the court sentenced defendant to an aggregate term of twenty years, with seventeen years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties. The details of the sentence imposed are reflected in a judgment of conviction signed by the sentencing judge on April 3, 2001.
We affirmed the sentence on direct appeal on February 19, 2002, State v. Delrice Cunningham, No. A-5412-00T4 (App. Div. Feb. 19, 2002), and thereafter the Supreme Court denied certification. State v. Cunningham, 174 N.J. 366 (2002). Defendant filed this PCR petition on May 24, 2006, arguing ineffective assistance of counsel.
In addressing the arguments raised by defendant, Judge Fullilove first noted that the PCR petition was time barred, because it was filed more than five years from the date of sentencing. R. 3:22-12(a). He nevertheless addressed the merits of the arguments raised by defendant, and found them to be without merit, and not requiring an evidentiary hearing.
Defendant now appeals raising the following arguments.
POINT ONE THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Based on the evidence available at the time, there is no rational basis to find that defense counsel was ineffective in failing to raise self-defense as an issue in defendant's case. See State v. Cottle, 194 N.J. 449, 460 (2008) (citing State v. Fritz, 105 N.J. 42, 58 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
The colloquy between defendant and the court at the plea hearing clearly shows that defendant understood the nature of his rights, and that he voluntarily agreed to plead guilty. In this light, there was no need to conduct an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). The sentence imposed by the court was well-supported by the record, and within the parameters of the plea agreement. We thus affirm substantially for the reasons expressed by Judge Fullilove in his oral opinion delivered from the bench on March 1, 2007.
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