On appeal from Superior Court of New Jersey, Law Division, Salem County, 03-12-0529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges A. A. Rodríguez and Payne.
Defendant, Frederick Fitch, was charged in a fourteen-count indictment with various first-, second- and third-degree sexual offenses, third-degree endangering the welfare of a child, fourth-degree aggravated assault with a firearm, and second- degree possession of a weapon for an unlawful purpose. He pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. In providing a factual basis for his plea, defendant admitted that in the period from June 1997 to June 2000, he committed digital or penile penetration on R.L.B., a child under the age of thirteen and that he committed criminal sexual assaults on A.J.B. and R.S.B. during varying time periods by touching their private parts for his own sexual gratification. A.J.B. and R.S.B. also were under the age of thirteen when the illegal acts occurred. With respect to the weapons charge, defendant admitted that he pointed a handgun, a 357 magnum, at "Wendy," with the intent to frighten her. Defendant was sentenced, pursuant to the plea agreement, to concurrent terms of thirteen years on the first-degree charge and seven years on the second-degree charges, all subject to the 1997 version of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, we found the NERA component of defendant's sentences for first- and second-degree sexual assault to be illegal, and we remanded the matter for resentencing. We affirmed the sentence for possession of a weapon for an unlawful purpose. Upon resentencing by the initial sentencing judge, the same custodial terms were imposed, but the periods of parole ineligibility specified by NERA were removed from all sentences except the sentence for possession of a weapon for an unlawful purpose. Defendant remains incarcerated in the Adult Diagnostic and Treatment Center at Avenel.
Defendant did not file a further appeal, but instead, brought a petition for post-conviction relief (PCR) in which he claimed that counsel was ineffective for not arguing that the application of mitigating factors warranted a reduction of defendant's sentence for his first-degree crime to ten years and for not arguing the inapplicability of NERA to the charge of possession of a weapon for an unlawful purpose. The motion judge denied defendant's petition, as well as his request for an evidentiary hearing.
Upon appeal from the denial of PCR, defendant argues:
COUNSEL AT TRIAL AND COUNSEL AT RESENTENCING WERE INEFFECTIVE FOR FAILING TO ARGUE FOR A LESS THAN PRESUMPTIVE TERM IN THE FACE OF THE COURT'S FINDING THAT MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE SOLE AGGRAVATING FACTOR.
DEFENDANT ARGUES THAT THE APPLICATION OF NERA TO HIS CONVICTION FOR POSSESSION OF A WEAPON WAS ILLEGAL AND IT WAS INEFFECTIVE ASSISTANCE OF ...