On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-03-0396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Rodríguez and Payne.
Defendant, Shayne Nelson, appeals from the denial of his petition for post-conviction relief (PCR), alleging ineffective assistance of counsel at several stages in his case. We affirm.
Defendant and William Taylor (co-defendant), were arrested following a carjacking incident in Atlantic City.
On January 6, 2001, defendant and co-defendant met Thomas Russo and Joseph Killian at Club Enigma on South Florida Avenue in Atlantic City. Russo and Killian left the Club in Russo's jeep, with Killian driving. Defendant and co-defendant asked for and received a ride in the jeep. Killian parked in the lot at Stanley Village, where he lived. Defendant pulled out a BB gun, held it to Killian's neck, and he and co-defendant told Killian and Russo to give them "everything," including a gold ring, a cell phone, several dollars in cash, a watch and the jeep.
Killian and Russo flagged down a police car and described both the perpetrators and the jeep. Approximately seven minutes later, the jeep was pulled over by the police. Defendant and co-defendant were arrested. The police found the watch, wallet, ring, money and cellular phone in the jeep, as well as a BB gun on the passenger-side floor, where defendant had been sitting. A subsequent test of the BB gun found it was functional and capable of firing a BB approximately fifteen yards, based on the May 25, 2001 report of Sergeant Pherribo of the Atlantic City Police Department (Operability Report).
Defendant eventually pled guilty to charges of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He received concurrent sentences aggregating eleven years, with a NERA*fn1 period of parole ineligibility. Defendant's motion for reconsideration of his sentence was denied.
Defendant appealed his sentence. We initially remanded "for a fact-finding hearing to determine the operability of the weapon." State v. Nelson, No. A-5020-01T4 (App. Div. Feb. 18, 2003). On remand, the judge found that the weapon was operable. Defendant appealed his sentence only. We affirmed the sentence. State v. Nelson, No. A-5817-02T4 (App. Div. Mar. 4, 2004).
Defendant filed a first PCR petition alleging ineffective assistance of trial counsel for failing to challenge the operability of the BB gun prior to the plea hearing and for failing to present the argument that that an unloaded gun did not meet the requirements for a NERA sentence at that time. Defendant also argued that his counsel at the remand hearing did not adequately represent his interests. It is undisputed that trial counsel was not available at this hearing, although another public defender was present on defendant's behalf. This defender informed the judge that defendant was seeking to retain private counsel and wanted the matter to be continued. The judge denied this request and the hearing went forward. The judge admitted the Operability Report as a business record and found that the BB gun was an "operational weapon" within the definition of NERA. Defendant argued in the PCR hearing that trial counsel rendered ineffective assistance in not retaining an expert to challenge the Operability Report. The PCR judge denied the petition.
On appeal, defendant contends:
THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT [DEFENDANT] [PCR] BASED UPON THE CLAIMS THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE (1) IN FAILING TO INVESTIGATE AND DEVELOP EXPERT TESTIMONY THAT THE BB GUN WAS INOPERABLE; AND (2) IN FAILING TO INVESTIGATE AND DEVELOP A RECORD BASED ON THE INCONSISTENT POLICE REPORTS THAT CO-DEFENDANT, TAYLOR, WIELDED THE BB GUN; [(3)] IN FAILING TO INVESTIGATE AND DEVELOP A RECORD THAT THE BB GUN WAS UNLOADED AT THE TIME OF THE CRIME; AND [(4)] IN FAILING TO MOVE TO DISMISS THE NERA ASPECTS OF THIS CASE AT HIS PLEA HEARING AND SENTENCING BECAUSE AT THOSE TIMES AN UNLOADED BB GUN SHOULD NOT HAVE BEEN CONSIDERED A DEADLY WEAPON FOR NERA PURPOSES. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).
The PCR judge denied defendant's petition on the grounds that many of defendant's claims were procedurally barred by virtue of the plea agreement, prior adjudication on the merits of the claims, or failure to raise the issue at the appropriate proceedings. The PCR judge also found that defendant had failed to establish either prong of the Strickland*fn2 test, in that there were no errors so egregious as to amount to abandonment of counsel, and that such failure could not have unduly prejudiced Defendant's claims. The PCR judge noted that the eleven-year sentence was "at the very low end" for a first-degree offense, and found that the ...