On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 96-12-1365.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and LeWinn.
Defendant Anthony Chapple appeals from the January 22, 2008 order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Tried to a jury in 1997, defendant was found guilty of second-degree burglary, N.J.S.A. 2C:18-2; two counts of fourth- degree aggravated assault with a firearm, N.J.S.A. 2C:12- 1(b)(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree conspiracy, N.J.S.A. 2C:5-2; and two counts of first-degree robbery with bodily injury, N.J.S.A. 2C:15-1(a)(1). On June 13, 1997, defendant was sentenced to an aggregate term of fifty years with a parole ineligibility period of sixteen and two- thirds years, to run consecutive to a sentence he was then serving on another conviction.
Defendant appealed and we affirmed his convictions and sentence. State v. Chapple, No. A-7190-96 (App. Div. March 23, 1999) (slip op. at 16). In that decision, we summarized the trial evidence as follows:
In the early morning hours [of December 18, 1995], three masked men broke into an apartment shared by Benita Harris and Linford Crooks. One of the masked men went into the bedroom, encountered Crooks, who had been awakened by the break-in, and put a gun to his head. A struggle for the gun ensued, and the robber in the bedroom yelled out[,] "Shoot him! shoot him!" At that point another of the robbers, who was standing outside the bedroom door, fired a gun into the room. That person was later identified as Chapple. The two robbers outside the bedroom fled at this point.
Crooks grabbed the gun from the robber in the bedroom, hit him on the head with the gun, and pulled off the robber's mask. Crooks recognized him as Marvin German, with whom he was acquainted. German subsequently fled the apartment. Crooks did not initially identify German to the police because he wanted to handle the matter himself; he later thought better of this.
Marvin German and another individual, Levi Thompson, testified at defendant's trial that they had been involved in the robbery, and that defendant was the third robber. Both German and Thompson testified that defendant had given German a gun, had another gun himself, and that it was defendant who fired the shot into the bedroom.
The Supreme Court denied defendant's petition for certification on June 9, 1999. 161 N.J. 149 (1999).
On April 14, 2000, defendant filed his first PCR petition, claiming: (1) his convictions on the robbery counts were against the weight of the evidence; (2) the jury was not properly instructed on how to consider defendant's statements; (3) error in the imposition of two extended term sentences; and (4) ineffective assistance of trial and appellate counsel. On October 31, 2000, the trial court denied defendant's PCR petition, and we thereafter affirmed in State v. Chapple, No. A- 1897-00 (App. Div. January 29, 2002) (slip op. at 7). The Supreme Court denied defendant's petition for certification on May 22, 2002. 172 N.J. 358 (2002).
On September 12, 2006, defendant filed his second PCR petition, which is the subject of this appeal. In his pro se petition defendant raised one main argument: "Defendant did not commit the crime of armed robbery and the trial court should have instructed the jury as to the elements of the offense of attempted armed robbery." Defendant raised this claim as a matter of legal error and as a "fundamental injustice[.]" Defendant also asserted that he was entitled to resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).
Counsel was assigned and filed a supplemental brief. Regarding the robbery/attempted robbery issue, defendant argued that he was entitled to have the jury charged as to the lesser- included offense of attempted robbery, an offense which the Supreme Court held as a matter of first impression to be "an offense contemplated by the Code [of Criminal Justice]" in State v. Farrad, 164 N.J. 247, 251 (2000).
Defendant noted that the Supreme Court decided Farrad on June 22, 2000. Prior PCR counsel did not raise this issue in defendant's first petition which, as noted, was denied on October 31, 2000. Rather, PCR counsel had raised a weight of the evidence argument regarding the elements of the offense, which the PCR judge rejected as grounds for relief.
In Farrad, the Supreme Court noted that the "Appellate Division vacated the robbery conviction, finding the State failed to establish either the use of force or the threat of immediate bodily injury, proof of which is an essential element of the crime of robbery." Ibid. However, "[t]he panel declined to mold the verdict to enter a conviction for attempted robbery because it was of the view that such an offense is not cognizable under the Code." Ibid.
Defendant pointed out that the appellate decision affirming his convictions and sentences was filed on March 23, 1999, and argued that, "[i]n Farrad, on an unknown date in 1999, the appellate court reversed the defendant's conviction for robbery and remanded the matter back for a new trial[,]" but that the Supreme Court granted ...