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State v. Loatman

December 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM LOATMAN, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-09-0838.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2008

Before Judges Cuff and Baxter.

Defendant William Loatman, Jr. appeals from a June 29, 2007 order that denied his first petition for post-conviction relief (PCR). He maintains that he received ineffective assistance of counsel during the PCR proceeding because PCR counsel did not raise trial counsel's failure to request a mistrial or seek a postponement when a defense witness did not appear and testify at trial. We affirm.

I.

Defendant was convicted, following a trial by jury, of three counts of second-degree possession of a weapon for an unlawful purpose, one count of third-degree unlawful possession of a handgun and one count of fourth-degree aggravated assault by pointing a handgun. On direct appeal, he raised only a single claim pertaining to his conviction; namely, that the trial court erred when it denied his motion for a judgment of acquittal or for a new trial. We rejected that argument, as well as the sentencing issue he raised, and affirmed. State v. Loatman, No. A-0865-02 (App. Div. December 17, 2003).

On December 29, 2004, defendant filed the PCR petition that is the subject of this appeal, raising three claims: 1) appellate counsel provided ineffective assistance when he failed to take any steps to "have [defendant's] State sentence run [con]current with his federal sentence"; 2) State v. Natale, 184 N.J. 458 (2005), affords him the right to a sentencing remand; and 3) trial counsel was ineffective when he failed to object to the prosecutor's comment in summation that "[f]rom the defense side of the room... you heard very, very, very, very little about [defendant]."

At the PCR hearing on June 27, 2007, Judge Geiger rejected all three claims. As to the concurrent sentencing issue, the judge observed that the federal sentence was imposed after defendant was sentenced in this matter, and therefore any application for a concurrent sentence should have been addressed to the federal court. Judge Geiger also found that had appellate counsel filed a motion for reconsideration of sentence, such motion would have been unsuccessful because the State sentence concerned "a separate crime, different location, different date, different victim, different type of crime, unrelated, no nexus between them, whatsoever."

On the question of the Natale remand, Judge Geiger correctly observed that because defendant's sentence was affirmed on direct appeal in December 2003, defendant's sentence was not in the Natale pipeline and defendant therefore had no right to a Natale remand.

As to the claim of prosecutorial misconduct, Judge Geiger observed that "the comment, although perhaps it would have been better for [it] not to have been made, do[es] not directly implicate defendant's right to remain silent, and his other trial rights." Consequently, Judge Geiger, having rejected all three claims that were advanced in the PCR proceeding, denied the petition.

On appeal from the denial of the PCR, defendant has not briefed any of the three arguments he raised in the Law Division. Consequently, we deem them abandoned and need not decide them. McGarry v. Saint Anthony of Padua Roman Catholic Church, 307 N.J. Super. 525, 531 (App. Div. 1998). He presents a lone substantive claim before us on appeal:

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST-CONVICTION ...


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