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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...