On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-08-1620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Graves and J. N. Harris.
In this appeal, we consider defendant's first application for post conviction relief (PCR). He challenges the Opinion and Order dated October 10, 2008, issued by Judge Harry G. Carroll, which denied defendant relief. We affirm substantially for the reasons stated in Judge Carroll's eighteen-page written opinion, and add only the following.
On May 19, 2003, defendant, almost twenty years of age and with only a tenth grade education, committed several crimes, including carjacking, pointing a firearm at another, unlawful possession of a handgun, possession of a handgun without a permit, and eluding a police officer. Specifically, while in possession of a loaded handgun, defendant threatened the victim with immediate bodily injury and then took the victim's 1992 Mercury Grand Marquis from a ShopRite parking lot in Englewood. In the immediate aftermath of the carjacking, defendant led the police on a high-speed chase along the Palisades Interstate Parkway, which ended when defendant's vehicle careened off the roadway into a wooded area and finally landed after overturning several times.
On August 20, 2003, defendant was charged in an indictment with first-degree carjacking, N.J.S.A. 2C:15-2; fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a); third-degree possession of a handgun without first having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b); and second degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b). Almost one year later, on August 9, 2004, defendant entered a plea of guilty to all of the above charges contained in the indictment and provided a cursory factual basis for each crime. In exchange for this plea, the State agreed to recommend a maximum sentence of ten years in custody subject to the eight-year and six-month period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On October 1, 2004, defendant was sentenced by Judge Joseph S. Conte--in conformity with the plea agreement's maximum recommendation--to an aggregate term of ten years incarceration. Defendant did not pursue a direct appeal of his conviction or sentence.
It was not until almost three years later, on September 12, 2007, when defendant filed a pro se application for PCR. Counsel was assigned to represent defendant, the issues were briefed, and the matter proceeded, on October 10, 2008, to a hearing before Judge Carroll. The court rejected all of defendant's arguments without conducting an evidentiary hearing. This appeal followed.
On appeal defendant makes the following arguments:
POINT I: THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT II: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENC[ING] HEARING AS [A] RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT THE SENTENCING HEARING. POINT III: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We have measured these issues in light of the record, the applicable law, and the written arguments of counsel. This court is confident that none of the issues is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We substantially subscribe to the views of Judge Carroll yet add the ensuing brief comments.
The lion's share of criticism on appeal is directed at Judge Conte's sentencing analysis, and the conduct of defendant's attorney during the sentencing hearing. We note that our Supreme Court has recently fortified the authority of sentencing judges, State v. Bieniek, ___ N.J. ___ (2010), and has reminded our court to avoid ...