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State v. Allen

January 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARNITA ALLEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-08-00993.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Rodríguez and Yannotti.

Defendant Carnita Allen appeals from the denial of her first petition for post-conviction relief (PCR). We affirm.

In the latter part of 2000, defendant, age fourteen, left her parents' home. She met Ronald Oxner, age twenty-two, shortly thereafter. She was arrested on September 27, 2000, and charged as a juvenile, along with Oxner, with attempted murder, aggravated assault, armed robbery and robbery of Mark O'Brien. The State moved to waive the jurisdiction of the Family Part. Following a waiver hearing, Judge Cornelius Sullivan granted the State's waiver motion. At the waiver hearing, defendant presented Lynn Bornfriend, M.D., a psychiatrist, who testified about defendant's home, addictions to drug and alcohol and tendency to become attracted to and sexually intimate with older males.

Defendant was subsequently indicted. Pursuant to a plea agreement, she pleaded guilty to first degree armed robbery, N.J.S.A. 2C:15-1a(1). The State agreed to recommend a thirteen-year term with a NERA*fn1 parole disqualifier. Judge John A. Almeida imposed a thirteen-year term with a NERA parole disqualifier. Defendant appealed. We affirmed the sentence. State v. Allen, No. A-1845-03T4 (App. Div. October 19, 2004), certif. denied, 183 N.J. 217 (2005).

This is an outline of the relevant facts. At the time of the crime, Oxner lived in Willingboro with Mark O'Brien, Steven Krause, Dominic Hall and Shawn Calli, who was the owner of the house. On September 20, 2000, O'Brien reported that his vehicle was stolen. The vehicle was recovered two days later in Burlington Township, while defendant and Brittany Cocchie were occupying it. Oxner was located inside a check cashing store where the vehicle was parked. The parties were taken into custody. Approximately two weeks prior to the crime, Calli told Oxner to vacate the residence.

On the night of September 23, O'Brien found Oxner in the Willingboro house. O'Brien requested that he leave. Prior to leaving, Oxner and defendant opened one of the windows in the bedroom where they were staying. They then left, but waited until O'Brien's bedroom light turned off before re-entering the house through the open window. Defendant plotted with Oxner to obtain O'Brien's keys and steal his vehicle the next morning. According to defendant's post-arrest statement to Burlington County Prosecutor's Detective Steven Scalici, Oxner initially suggested hitting O'Brien with a baseball bat to obtain the keys to the vehicle. Defendant suggested that they stab O'Brien instead to eliminate him as a witness.

O'Brien discovered that Oxner was in the house again and told him to leave. O'Brien then went into the bathroom. Defendant attempted to locate O'Brien's car keys. Oxner retrieved two kitchen knives and asked O'Brien to accompany him. Defendant was hiding behind the door with a knife. As O'Brien walked in the direction of the vehicle, defendant stabbed him in the back multiple times. Defendant told Oxner that her knife was bent. He got her another knife. Oxner then stabbed O'Brien in the legs. Defendant and Oxner stole O'Brien's keys, vehicle, wallet and telephone. Defendant and Oxner fled to Philadelphia.

Defendant was arrested and taken into custody by the Willingboro Police Department on September 27, 2000. Because defendant was a minor, her father was contacted and requested to come to the police department. Detective Scalici conducted the interview of defendant. Defendant was advised of her Miranda*fn2 rights in the presence of her father. Defendant and her father acknowledged their understanding of defendant's rights. In defendant's presence, her father consented to defendant speaking to officers outside of his presence. Defendant was informed that she could stop talking to the detectives at any time she felt uncomfortable or desired to stop talking.

Defendant disclosed to Detective Scalici the sequence of events outlined above. In addition, defendant disclosed that it was her intent to kill O'Brien. O'Brien later identified the first stabber as the black female who occupied his car when it was recovered. Statements obtained from Oxner also implicated defendant.

After her direct appeal and denial of certification, defendant filed pro se a PCR petition. PCR counsel was appointed to represent her. Defendant alleged ineffective assistance by waiver, trial and appellate counsel. Judge Almeida denied defendant's petition in a comprehensive letter opinion dated December 20, 2007. He held that defendant was provided with effective assistance of counsel at the waiver, trial and appellate levels. The judge found that defendant was in fact apprised of her right to appeal Judge Sullivan's waiver decision. Judge Almeida also rejected defendant's ineffective assistance of counsel claims premised on the waiver counsel's failure to challenge the admission of her confession and trial counsel's failure to present the Bornfriend psychiatric report as mitigating evidence during the sentencing hearing. In addition, the judge found that because defendant failed to establish a prima facie claim of ineffective assistance of counsel, it was unnecessary to conduct an evidentiary hearing.

On appeal, defendant contends:

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HER TRIAL AND APPELLATE ATTORNEYS IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

A. Appellate Counsel Was Ineffective By Not Raising The Issue Of The Trial Court's Decision To Transfer Defendant's Case From The Family Part Of The Superior Court To the Criminal Part.

B. Trial Counsel Was Ineffective By Not Informing Defendant About Her Right To File Either An Interlocutory Appeal At the End Of The Waiver Hearing In The Family Part Or A Direct Appeal At The Conclusion Of The Criminal Proceedings To Challenge The Waiver Court's Decision Granting The State's Motion To Transfer This Case To The Criminal Part In Order To Try Her As An Adult (Partially Raised Below).

1. Inadequate Notice of Right to File Interlocutory Appeal.

2. Inadequate Notice of Right to File Direct Appeal at the ...


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