On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Girbron Parson appeals from an order entered on March 26, 2007 denying his petition for post-conviction relief (PCR). We affirm in part and reverse and remand in part.
On July 10, 1998, defendant pled guilty pursuant to a negotiated plea agreement to first degree aggravated manslaughter, N.J.S.A. 2C:11-4a, amended from murder (Count 8); and first degree armed robbery, N.J.S.A. 2C:15-1 (Count 6). The remaining ten counts of the indictment were dismissed pursuant to the plea agreement. On September 11, 1998, defendant was sentenced to an aggregate term of fifty years subject to twenty-five years parole ineligibility.
On September 15, 1999, we affirmed the sentence on a Sentence Only Argument (SOA) calendar. On March 17, 2003, defendant filed a pro se PCR petition, claiming ineffective assistance of counsel. Counsel was assigned but the PCR petition was dismissed without prejudice because of counsel's illness.*fn1
Defendant filed a second petition and a motion for it to be filed within time. New counsel was subsequently assigned and the matter was heard on February 22, 2007.
The charges against defendant arose on March 16, 1997 when an armed robbery of a store in Jersey City led to the store owner, Abdelmalek Rezkalla, being shot in the chest and killed. Co-defendant Lamont Thomas was also charged. Thomas pled guilty prior to defendant's plea. A condition of Thomas's plea agreement was that he would testify truthfully against defendant at trial. During his plea colloquy, Thomas testified that defendant shot Rezkalla.
Defendant now claims that when he entered his plea agreement, he was heavily sedated on psychotropic medications. During the plea colloquy, defendant said he did not understand what defense counsel had related to the court about the plea agreement. The court inquired whether there was a psychological problem. Defense counsel responded that there was none he was aware of. The court advised defendant to consult with his attorney and recessed the matter until later that day. Defendant then entered the guilty plea with a factual basis in which he stated that he was in possession of a .38 caliber handgun when he entered the store, which subsequently went off accidentally while he scuffled with the decedent. Defendant testified that there was only one shot fired. The prosecutor, however, indicated that there were two shots and that the victim was wounded in the head and chest. Defendant then stated that the head wound must have occurred when he hit the decedent on the head with the gun.
In his PCR petition, defendant argued that trial counsel was ineffective. The trial court rendered a written decision on defendant's PCR application in which it analyzed each of the issues raised by defendant and determined that there was no merit to any of them.
In this appeal, defendant argues:
MR. PARSON WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Failure to Investigate and Communicate a Defense Strategy. (Partially raised below)
B. Failure to File a Motion to Suppress the Out-of-Court Statement made by [decedent's son] at the Police Station. (Not raised below)
C. Failure to Effectively Refute Aggravating Factors at Sentence. (Not raised below)
MR. PARSON WAS DEPRIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. (Not raised below)
THE TRIAL COURT ERRED BY NOT ORDERING AN ...