April 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN HOWARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Parker and Yannotti.
Defendant John Howard appeals from an order entered on April 20, 2007 denying his petition for post-conviction relief (PCR).
A judgment of conviction was entered on June 11, 2004 after a jury found defendant guilty of first degree robbery, N.J.S.A. 2C:15-1; fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second degree possession of a weapon 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:39-5c(1). He was sentenced to an extended term of twenty-two years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On April 12, 2006, we affirmed defendant's conviction but remanded for amendment of the judgment to reflect merger of offenses. On November 17, 2006, the Supreme Court denied certification. State v. Howard, 188 N.J. 574 (2006). On that issue, the Supreme Court summarily remanded the matter to the trial court for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). Ibid. On August 9, 2006, defendant filed his first PCR petition. Counsel was appointed and the matter was heard and denied on April 20, 2007.
We summarize the facts on which defendant was convicted. On November 23, 2003 at 6:45 p.m., defendant walked into a liquor store on Route 22 in Union, pulled a gun and pointed it at the owner, Arvind Patel. Patel saw that it was a BB gun and told defendant, "[s]hoot, there's a cop behind you." Defendant walked out of the store, Patel told his wife to call the police, picked up a garbage can and ran after defendant. Patel chased defendant through the parking lot, got in his car and followed defendant to a point where defendant was walking on a one-way street. Patel did not enter the one-way street and returned to the store. Three officers were there and Patel described defendant to them. About ten minutes later, a Union police officer apprehended defendant and Patel identified him in a drive by. Defendant's jacket and BB gun, which Patel had described to police, were found near where defendant was apprehended.
In his PCR petition, defendant argued to the trial court that he was denied effective assistance of counsel on the ground that trial counsel failed to request that the verdict sheet allow for a finding of lesser included offenses of attempted robbery or second degree robbery.
In this appeal, defense counsel argues:
POINT ONE THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF
B. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL DID NOT OBJECT TO THE VERDICT SHEET SUBMITTED TO THE JURY WHICH DID NOT ALLOW FOR A FINDING OF THE LESSER-INCLUDED OFFENSE OF ATTEMPTED ROBBERY
C. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL DID NOT REQUEST THAT THE COURT CHARGE THE JURY WITH THE LESSER INCLUDED OFFENSE OF SECOND-DEGREE ROBBERY Defendant has also submitted a pro se supplemental brief in which he argues:
POINT ONE THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR REHEARING AND THE REASSIGNMENT OF COUNSEL, IN ORDER THAT A FULL RECORD CAN BE MADE ON ALL MATTERS WHICH LAY OUTSIDE THE RECORD
POINT TWO THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A NEW SENTENCING HEARING, WHERE THE COURT CONSIDERED AN INAPPLICABLE AGGRAVATING FACTOR AND FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS, TO IMPOSE A DISCRETIONARY EXTENDED TERM
First, we note that the trial court did charge the jury on attempt to commit a robbery, but the verdict sheet did not provide for the jury to find defendant guilty of attempt or second degree robbery. We have carefully considered defendant's arguments and we are satisfied that in light of the evidence on which the jury found defendant guilty, he has demonstrated a prima facie case for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Accordingly, we remand for a hearing to determine whether trial counsel made a strategic decision not to request the inclusion of attempt or second degree robbery on the verdict sheet. State v. Preciose, 129 N.J. 451, 463 (1992).
With respect to defendant's pro se arguments, we find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we note that the cross-racial identification issue was specifically addressed on direct appeal.
Defendant argues pro se that the trial court erred in applying aggravating factor eleven ("The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices.") N.J.S.A. 2C:44-1a(11). He further argues that the trial court erred in failing to apply mitigating factor eleven ("The imprisonment of defendant would entail excessive hardship to himself or his dependents.") N.J.S.A. 2C:44-1b(11).
Defendant provided no evidence of hardship, however. Given defendant's criminal history, even if the trial court deleted aggravating factor eleven, the aggravating factors would still substantially outweigh the mitigating factors resulting in no change in the sentence.
Remanded for an evidentiary hearing in accordance with this opinion. We do not retain jurisdiction.
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