December 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRYANT NASH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-06-2143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Carchman and Lihotz.
Following indictments in both Essex and Union Counties, defendant Bryant Nash entered into a plea agreement with the State and pled guilty on the Essex County indictment to amended count of second-degree armed robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(c). On the Union County indictment, defendant entered a plea of guilty to the same offenses. The judge sentenced defendant on both indictments to an aggregate sentence of thirty-years imprisonment with twenty-years of parole ineligibility. Defendant only appealed the sentence, which we affirmed, and the Supreme Court denied certification. State v. Nash, 183 N.J. 257 (2005). Thereafter defendant filed a petition for post- conviction relief (PCR). In a twenty-three page written opinion, Judge Casale denied the PCR. Defendant appeals, and we affirm.
At the entry of a plea for the Union County indictment, defendant admitted that on February 19, 2003, he stole a vehicle from an 80-year old victim. In the course of the robbery, defendant used force and was in possession of a shotgun for which he had no permit. Similarly, at the entry of a plea for the Essex County indictment, defendant admitted that on February 20, 2002, he stole a vehicle from a woman; and defendant threatened the woman with the shotgun for which he had no permit.
As we have noted, defendant only appealed the sentence. On the PCR, defendant raised the following issues:
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, DUE TO TRIAL COUNSEL'S FAILURE TO MAKE A MOTION TO SUPPRESS, FAILURE TO SUBMIT EVIDENCE AND RAISE A DEFENSE OF DIMINISHED CAPACITY, AND APPELLATE COUNSEL'S FAILURE TO RAISE SAID ISSUES OF TRIAL ERROR ON APPEAL.
A. TRIAL COUNSEL FAILED TO MOVE TO SUPPRESS THE DEFENDANT'S STATEMENT, FAILED TO MOVE TO SUPPRESS INCRIMINATING EVIDENCE, AND FAILED TO PRESENT OR INVESTIGATE A DIMINISHED CAPACITY DEFENSE.
B. APPELLATE COUNSEL FAILED TO RAISE ISSUES OF TRIAL ERROR INVOLVING TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE OF DEFENDANT'S DIMINISHED CAPACITY.
THE COURT FAILED TO ADEQUATELY ADVISE THE DEFENDANT OF THE PENAL CONSEQUENCES OF THE PLEA AND FAILED TO ELICIT A FACTUAL BASIS FOR THE GUILTY PLEA, WHICH WERE NOT TAKEN BY THE DEFENDANT WITH AN UNDERSTANDING OF THE NATURE OF THE CHARGES AS APPLIED TO THE FACTS OF THE CASE.
A. TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE THE DEFENDANT OF THE PENAL CONSEQUENCES OF HIS PLEA.
B. TRIAL COUNSEL FAILED TO ELICIT A FACTUAL BASIS FOR THE GUILTY PLEA.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
THE SENTENCING COURT FAILED TO PROVIDE THE PROPER JAIL CREDITS.
On appeal, defendant raises the following issues:
POINT I- THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEASE WERE NOT KNOWING AND VOLUNTARY. DEFENDANT HAD NEVER BEEN ADVISED THAT HE COULD BE SUBJECT TO THE NO EARLY RELEASE ACT AND DID NOT GIVE A FACTUAL BASIS TO THE PLEAS.
POINT II- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEASE BARGAINING STAGE.
POINT III-THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PREPARATION OF THE DEFENSE.
A. COUNSEL'S FAILURE TO FILE CRUCIAL MOTIONS.
B. COUNSEL'S FAILURE TO DEVELOP A DIMINISHED CAPACITY DEFENSE.
POINT IV-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT V- THE IMPOSITION OF THE SENTENCE VIOLATES DUE PROCESS AND THE RIGHT TO A TRIAL BY JURY BECAUSE AGGRAVATING FACTORS WERE NOT FOUND BY A JURY. MOREOVER, THE SENTENCE IS EXCESSIVE.
A. THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES AND PERIODS OF PAROLE INELIGIBILITY BASED ON FACTORS NOT FOUND BY A JURY.
B. THE COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE BASED ON FACTORS NOT FOUND BY A JURY.
POINT VI-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT FAILED TO PROVIDE DEFENDANT WILL ALL OF THE APPLICABLE JAIL TIME CREDITS.
POINT VII-THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT VIII-THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We first address the issues raised in Points I, V, VI and VII. The State correctly argues that these arguments are barred by Rule 3:22-5 as well as Rule 3:22-4. Rule 3:22-5 provides:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceeding.
The issue of defendant's exposure to the No Early Release Act, N.J.S.A. 2C:43-7.2, was not only discussed on the record at the time of the entry of the pleas but was the subject of defendant's direct appeal before us. Likewise, the issue of consecutive and excessive sentences as well as jail credits were all addressed on the direct appeal and are barred by Rule 3:22- 5.
As to defendant's other issues, we have carefully reviewed the record and conclude that defendant's claims are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Casale's thoughtful and thorough written opinion of May 8, 2008.
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