On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-12-01512 and 01-12-01514.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Alvarez.
Defendant appeals from an order denying his petition for post-conviction relief (PCR). In the first phase of a sequential trial, the jury found defendant guilty of all three counts of Indictment No. 01-12-01512: (1) first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In the second phase of the trial, the jury found defendant guilty of the sole count of Indictment No. 01-12-01514, second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). On the first indictment, Judge Peim merged the two weapons offenses with the robbery offense, on which he sentenced defendant to eighteen years imprisonment with a six-year parole disqualifier, consecutive to the sentence imposed on the second indictment. On the second indictment, the judge sentenced defendant to eight years imprisonment with a five-year parole disqualifier, consecutive to the first indictment. The sentences on both of these indictments were ordered to be served concurrently with a sentence defendant was then serving under an unrelated indictment.
Defendant appealed, and in an unreported decision, we affirmed his conviction. State v. Brian Jones, No. A-1788-02 (App. Div. November 25, 2003). Defendant's petition to the Supreme Court for certification was denied on January 4, 2005. State v. Brian Jones, 182 N.J. 426 (2005).
On April 26, 2005, defendant filed a pro se petition for PCR. On March 17, 2006, defendant's PCR counsel filed an amended petition and supporting brief. Defendant argued that his trial and appellate counsel were ineffective in several respects. He requested a new trial or, alternatively, an evidentiary hearing to resolve the ineffective assistance of counsel claims. Defendant also argued that he should be resentenced to clarify the order in which his consecutive sentences are to be served.
On September 14, 2006, without granting an evidentiary hearing, Judge Peim denied the petition. In his order, the judge set forth specific findings and reasons for rejecting each of defendant's claims of ineffective assistance of trial and appellate counsel, and his reasons for not granting an evidentiary hearing. The judge did not address the order in which defendant's sentences were to be served. This appeal followed.
THE COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE [COUNSEL], DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND SUBMIT EVIDENCE, FAILURE TO PRESENT AN ARGUMENT TO THE JURY REGARDING THE INADEQUATE POLICE INVESTIGATION, FAILURE TO DEMONSTRATE BATES' MOTIVE TO FABRICATE THE ROBBERY, FAILURE TO MOVE FOR A JUDGMENT OF ACQUITTAL, AND APPELLATE COUNSEL'S FAILURE TO RAISE SAID ISSUES IF ERROR ON APPEAL.
THE COURT ERRED IN DENYING THE MOTION FOR POST-CONVICTION RELIEF BECAUSE THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL, PURSUANT TO R. 3:22-10 ON THE BASIS THAT HE ...