On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 99-09-2290.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Wefing and Parker.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
In September 1999, defendant was indicted for conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, a crime of the second degree; robbery while armed, N.J.S.A. 2C:15-1, a crime of the first degree; unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), a crime of the third degree; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree. On November 30, 2000, defendant entered a negotiated plea of guilty to pointing a firearm at another, N.J.S.A. 2C:12-1(b)(4), a crime of the fourth degree. On January 26, 2001, the trial court sentenced defendant to a term of eighteen months incarceration. Because defendant had already served 567 days in custody, he was released shortly after sentencing.
In March 2007, more than six years after defendant's judgment of conviction was entered, he filed a PCR petition, contending that the attorney who had represented him in connection with this matter had been ineffective. He contended that his failure to file his petition within five years, as required by Rule 3:22-12, was due to his several incarcerations in the interim. He noted that he had been paroled from his latest incarceration in February 2006 and was released into the custody of the Immigration and Customs Enforcement Agency of the Department of Homeland Security.
Counsel was assigned to represent defendant in connection with this petition. Counsel argued that defendant's trial counsel was ineffective for not discussing with defendant the deportation consequences of a guilty plea. He also argued that defendant's petition was not procedurally barred.
After hearing argument, the trial court denied the petition without having a plenary hearing. The trial court gave an oral opinion in which it concluded that defendant's petition was procedurally barred for being untimely. It also discussed the substantive merits of defendant's petition and found it wanting. On appeal, defendant raises the following arguments for our consideration.
THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF.
THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL FAILED TO PROVIDE ...