On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-06-0885.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2008
Before Judges Wefing and Parker.
Defendant Travon Ellison appeals from an order entered on January 25, 2007 denying his petition for post-conviction relief (PCR). We affirm.
Pursuant to a negotiated plea agreement, defendant entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4a. The State agreed to recommend a seventeen-year term subject to 85% parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to recommend that the sentence run concurrently with any sentence defendant was then serving or any sentence imposed on a parole violation. Defendant was sentenced in accordance with the plea agreement on May 26, 1999. On June 5, 2003, we affirmed on the sentence only argument (SOA) calendar. His petition for certification was denied by the Supreme Court on November 17, 2003.
On November 11, 2005, defendant filed a pro se PCR petition. The petition was denied on January 8, 2007, and defendant filed this appeal.
The facts relevant to this application are as follows. At 1:30 a.m. on November 22, 1997, the Jersey City Police Department received a report that a man had been shot. The victim, Jeffrey Anderson, was transported to the hospital and died shortly thereafter.
An eyewitness, Calvin Buckhana, testified that earlier that evening he met Anderson and they hung out on a corner near Ram's Bar. Buckhana testified that defendant approached them, reached into his jacket and pulled out a silver handgun. Buckhana then saw co-defendant Bryan Miles approach pointing a black gun at Buckhana. Miles fired the gun but it malfunctioned. Buckhana and Anderson ran but when Buckhana turned, he saw defendant aiming the silver gun at Anderson's back. Defendant fired and Anderson fell face first into the street. Buckhana testified that defendant approached Anderson and shot him again several times at point blank range. Defendant and Miles then fled and Buckhana ran to Ram's Bar for help. Buckhana further testified that he knew defendant for approximately seven years before this incident and identified defendant from a photo lineup.
A second eyewitness, Ly'te Williams, corroborated Buckhana's testimony. Williams was across the street when the shooting started and he was able to identify both defendant and Miles.
After the shooting, the police received an anonymous tip regarding the location of the car defendant had arrived in on the night of the shooting. Defendant's sister, Ebony Ellison, owned the car and was in it with her friend, Jocelyn Adams, when the police arrived. Ebony told the police that she was in the vicinity of Ram's Bar, along with defendant and others on the night of the shooting.
Six days after the shooting, on November 28, 1997, defendant's attorney notified the police that defendant wanted to surrender. He later changed his mind, but on December 1, 1997, co-defendant Miles surrendered to the police. On December 2, defendant surrendered.
With his attorney present and after Miranda*fn1 warnings had been read to him, defendant gave a statement to the police admitting that he was present at the shooting but claimed that Miles killed Anderson. Defendant claimed that he walked past and bumped Anderson in front of Ram's Bar and continued walking. As he reached the front door, he heard gunshots, turned around and saw Miles shoot Anderson several times. He claimed that Miles was carrying the silver .45 automatic for protection because earlier that day he and Miles had an altercation with "Tutu," who had shot at them. Defendant also said that earlier in the week Anderson had shot at him, Miles and "Sharkey" because they refused to give one of Anderson's boys a "dip" cigarette for free.*fn2 Defendant also maintained that Miles shot Anderson.
In his PCR petition, defendant alleged that he was never advised that he would have a five-year parole supervision term after he had completed serving his NERA sentence.*fn3 He claims that the additional five years increases his sentence from seventeen to twenty-two years and that if he had known his sentence would ...