On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 97-10-2472-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Wefing and LeWinn.
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.
Defendant was originally indicted for three counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and three counts of fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b).
The parties agreed that to avoid undue prejudice to defendant, a severance was required. He was initially tried in March 1998 on one count of first-degree robbery and charges of unlawful possession of a weapon and possession of a weapon for an unlawful purpose. That jury was only able to agree on a verdict of guilty to one count of unlawful possession of a weapon; a mistrial was declared with respect to the remaining counts. A second trial was conducted in June 1998, and that jury found defendant guilty of first-degree robbery, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. A negotiated plea resolved the remaining counts of the indictment. The trial court sentenced defendant to eighteen years in prison for robbery, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court also sentenced defendant to concurrent terms of incarceration for the remaining convictions.
Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Johnson, No. A-773-98 (App. Div. Oct. 7, 1999). The Supreme Court granted defendant's petition for certification to determine whether a jury was required to make the finding that a predicate offense is "violent" for purposes of sentencing under NERA as it stood at the time of these offenses. 166 N.J. 523, 527 (2001). The Court concluded that this jury did in fact make the necessary predicate finding, and it affirmed defendant's sentence. Id. at 545-46.
In May 2003, defendant, acting pro se, filed a petition for PCR. Counsel was ultimately assigned to represent defendant in connection with his petition. After hearing oral argument, the trial court denied the petition; it concluded defendant had not presented any basis to require a plenary hearing. This appeal followed.
On appeal, defendant raises the following arguments:
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE THE COURT PRECLUDED THE DEFENDANT FROM USING AN ALIBI DEFENSE AND APPELLATE COUNSEL FAILED TO ARGUE THAT THE COURT ERRED IN RULING AS SUCH.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL FAILED TO OBJECT TO THE PHOTO ...