On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 98-09-726-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Lisa and Reisner.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon (a handgun and/or sawed-off shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); disorderly persons simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of aggravated assault (count four); and third-degree unlawful possession of a weapon (a sawed-off shotgun) (count five), N.J.S.A. 2C:39-3b. The judge sentenced defendant on count one to eighteen years imprisonment subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and also subject to a nine-year parole disqualifier under the Graves Act, N.J.S.A. 2C:43-6c. On the remaining counts, defendant was sentenced to lesser terms of imprisonment, all of which were ordered to be served concurrent to the sentence on count one.
Defendant appealed, and in an unreported decision we affirmed his convictions and, except with respect to the NERA parole disqualifier, we affirmed his sentences. State v. Pratt, No. A-4513-01 (App. Div. Feb. 18, 2004). Therefore, defendant's resulting aggregate sentence is eighteen years imprisonment with a nine-year Graves Act parole disqualifier. On May 19, 2004, the Supreme Court denied defendant's petition for certification. State v. Pratt, 180 N.J. 358 (2004).
By documents dated September 15, 2004, defendant filed his PCR petition. Counsel was eventually assigned, and counsel filed a supplemental brief on defendant's behalf on April 2, 2007. On April 27, 2007, Judge Marshall heard oral argument. Without granting an evidentiary hearing, he denied defendant's petition, and entered an order to that effect on April 30, 2007.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION, AND THE TRIAL COURT ERRED BY FAILING TO AFFORD HIM SUCH A HEARING.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THE BASIS THAT IT WAS PROCEDURALLY ...