On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Parrillo and Ashrafi.
Defendant Kenneth Gilliard appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), (2); two counts of first-degree robbery, N.J.S.A. 2C:15-1; four counts of aggravated assault ranging from fourth- to second-degree, N.J.S.A. 2C:12-1b(1), -1b(2), and -1b(4); five counts of weapons offenses, including second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7; and first-degree conspiracy, N.J.S.A. 2C:5-2. These charges stem from an October 6, 2001 incident at a private residence in Pleasantville where defendant allegedly pointed a shotgun at two individuals, Michael Meritt and Stephan Bunch, and demanded money. Meritt complied, but later returned with a gun. Supposedly, both defendant and Meritt fired at each other. Meritt was shot in the head, causing permanent loss of vision.
On the day of the incidents, Meritt gave a statement, naming defendant as the offender. In addition to Meritt and Bunch, there were other witnesses to the robbery - Anthony Stevens, Carl Callaway and Paul Campos - the latter of whom also observed the shooting. That same day, Campos gave a statement to police describing and naming defendant as the offender in both the robbery and the shooting. The next day Campos contacted police and notified them that Bunch, Stevens, and Callaway were at his residence and willing to give statements.
During the ensuing police interviews, Campos and Stevens identified defendant from a photo array. Callaway picked out photos of two individuals, one of whom was defendant, as possibly being the offender. All witnesses were in close proximity to the robbery and described the offender as wearing a camouflage jacket. Campos was also in close proximity to the shooting.
Defendant ultimately pled guilty to first-degree robbery, admitting that he took a shotgun, pointed it at Meritt, and demanded money. In exchange for the plea, the State agreed to dismiss the remaining charges for which he was exposed to a life sentence as extended-term eligible, and to recommend a fifteen-year term subject to an eighty-five percent parole ineligibility period and five years of parole supervision. Defendant signed a general plea form and supplemental plea forms for Graves Act, N.J.S.A. 2C:43-6(c), and No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, offenses. These forms stated that the charge carried a maximum sentence of twenty years, an eighty-five percent parole ineligibility period, and a five-year parole supervision term during which time if defendant violated the terms of parole, he may be required to serve the remainder of the term incarcerated, even if he had previously served his maximum sentence.
At the plea hearing, defendant acknowledged that he understood the contents of the plea forms and that he was facing a life sentence should he otherwise decide to go to trial. See N.J.S.A. 2C:44-3(a). Defendant was sentenced in accordance with the terms of the plea agreement. At sentencing, the judge informed defendant that he would receive 234 days in gap-time credits. We affirmed the judgment of conviction on our Excessive Sentencing Oral Argument (ESOA) calendar.
Defendant then filed a timely PCR petition arguing counsel was ineffective in recommending a guilty plea; failing to file a pretrial Wade*fn1 motion to suppress the photo identifications; failing to move to dismiss the indictment for the State's failure to present exculpatory evidence before the grand jury; failing to move for a change of venue; and lastly, failing to advise of the inapplicability of gap-time credits to a mandatory minimum term on a NERA sentence. Following argument, at which defendant was not present, the judge denied the application without an evidentiary hearing.
Defendant appeals raising the following two issues:
I. THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR, 10.
II. THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT THE RIGHT TO BE PRESENT AT HIS INITIAL ...