August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZACK HOLMES, A/K/A DARNELL WHITTINGTON,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 05-05-1164 and 06-08-1796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2009
Before Judges R. B. Coleman and Graves.
After defendant Zack Holmes willingly absented himself, he was tried in absentia and a jury convicted him of second-degree possession of a firearm by a prohibited person, in violation of N.J.S.A. 2C:39-7, as charged in count four of Atlantic County Indictment No. 05-05-1164. In addition, the court found defendant guilty of the disorderly persons offense of possessing less than fifty grams of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4). On December 6, 2005, the court granted the State's motion to sentence defendant to a discretionary extended term under the persistent offender statute, N.J.S.A. 2C:44-3(a), and the court imposed an eighteen-year extended prison term with nine years of parole ineligibility.*fn2
On appeal, defendant presents the following arguments:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL FAILED TO FILE A MOTION FOR A SUPPRESSION HEARING. (Not Raised Below)
DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF 18 YEARS WITH A 9 YEAR PAROLE BAR. THE SENTENCE MUST BE VACATED.
After reviewing the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
With respect to defendant's first point, which was not raised below, defendant contends that if a motion to suppress had been filed, the court "would have been constrained" to grant the motion and suppress "the gun found in the glove compartment." The State, on the other hand, argues that if there was a suppression hearing, defendant's motion would have been denied because "the search was justified under the automobile exception." In addition, the State contends that "defendant's ineffective assistance of counsel claim should be raised on a post-conviction relief application, as the testimony of trial counsel and further development of the facts relating to the search of defendant's vehicle are necessary." We agree.
"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992); accord State v. Homdziuk, 369 N.J. Super. 279, 288 (App. Div. 2004). Because there was no pretrial suppression hearing, the record is insufficient to evaluate whether the firearm that was seized should have been suppressed. Consequently, we affirm the judgment of conviction without prejudice to defendant's right to seek post-conviction relief.
Defendant also challenges his sentence, but he does not dispute he was eligible to be sentenced to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). In determining defendant's sentence within the extended-term range, the court noted that defendant, who was thirty years old when he was sentenced, had been previously convicted of eight felony offenses in the State of Pennsylvania. The court also found that aggravating factors 3, 6, and 9*fn3 were present and that "the aggravating factors clearly, convincingly, and substantially" outweighed "the nonexistent mitigating factors."
"An appellate court may modify a sentence only if the sentencing court was 'clearly mistaken.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In this case, the trial court correctly applied the sentencing guidelines and its findings regarding the presence of aggravating factors and the absence of mitigating factors were based on competent and credible evidence in the record. Additionally, we are satisfied the sentence imposed was not manifestly excessive or unduly punitive, and it does not constitute an abuse of discretion. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984).