On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 97-07-0848.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Rodríguez.
Defendant John Franklin Miller appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
These are the salient facts. In April 1999, following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20- 3a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and fourth-degree terroristic threats, N.J.S.A. 2C:12-3a. The State moved to sentence defendant to an extended term. Judge Charles A. Delehey granted the State's motion and, after appropriate merger of offenses, sentenced defendant to a fifty-year term with a twenty-five-year parole disqualifier on the armed robbery conviction. On direct appeal we affirmed. State v. Miller, No. A-7072-98T4 (App. Div. Feb. 8, 2001), certif. denied, 168 N.J. 294 (2001).
The State's proofs can be summarized as follows. On January 16, 1997, at approximately 10:30 p.m., the victim, a twenty-six-year-old woman, was walking on Pennington Avenue in Trenton. As she attempted to hail a taxicab, defendant approached from behind. He held a knife to her back and told her to hop over the wall onto the grounds of a reservoir. The victim had never seen defendant before.
Once over the wall, defendant directed the victim to the other side of the reservoir. She complied, but walked backwards. She was scared to turn her back to him because she saw that he was holding a long silver knife with a brown or black handle. The victim was wearing a black leather coat with a fur collar. She did not scream for help out of fear that he would stab her.
Defendant told her to remove her clothing. The victim questioned him "why?" He told her to do it before he stabbed her and that he wanted to have sex. She took off her coat and threw it on the ground. Then she kicked off her shoes and started to run through the reservoir towards Pennington Avenue.
Defendant gave chase. She screamed for help. Eventually, she saw two men on the street. As she was telling them what had happened, a marked police vehicle arrived. The police officers indicated that someone had notified them of an ongoing incident. She gave the police a description of her attacker. The officers went to the reservoir area and found her shoes, keys, $420 worth of WIC checks and a child support check for $81.82. However, they did not find her leather coat. The victim was taken to police headquarters to look at photographs of possible suspects. She could not make a selection.
Two weeks later, defendant was brought to police headquarters in connection with an unrelated investigation. During this investigation, defendant consented to have his photograph taken. This photograph was then shown to the victim of the assault in an eight-picture photographic array. She selected defendant's photograph as her assailant.
Defendant filed pro se a first PCR petition. Judge B. Thomas Leahy, upon a motion for reconsideration, ordered that PCR counsel be assigned to represent defendant. Counsel filed an amended verified petition and a supplemental brief, alleging that defendant had been denied his right to due process of law, a fair trial and the effective assistance of trial and appellate counsel because the out-of-court and in court identifications were not challenged. He also argued that his sentence was illegal. In a supplemental letter brief, counsel argued that trial counsel was ineffective for failing to investigate whether the fingerprints found on the knife were that of defendant. He also argued that the State failed to disclose the victim's pending criminal charges for the disorderly persons charge of issuing bad checks, N.J.S.A. 2C:21-5c(4).
Judge Andrew J. Smithson determined that an evidentiary hearing was not necessary and issued a written opinion and an order denying defendant's PCR petition on July 2, 2007. After correctly identifying the standards for judging claims of ineffective assistance of counsel,*fn1 and for requiring an evidentiary hearing,*fn2 the judge wrote in pertinent part:
In his initial brief petitioner raised two grounds for post-conviction relief. First, he argued that both his trial and appellate counsel were ineffective for failing to object to in and out of court identifications made by the victim. In preparation for trial, counsel requested a Wade hearing to challenge the admissibility of the victim's out of court ...