March 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARLIVIA MITCHELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 00-09-1087 and 00-09-1095.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2010
Before Judges Rodríguez, Reisner and Chambers.
Defendant Arlivia Mitchell appeals from an October 5, 2006 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted by a jury of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); and second degree possession of a handgun by one who has been previously convicted of robbery, N.J.S.A. 2C:39-7b. Defendant was sentenced to an aggregate term of seven years, with an eighty-five percent period of parole ineligibility, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his direct appeal he raised the following issues:
POINT I: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below.) POINT II: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF SECOND DEGREE AGGRAVATED ASSAULT WAS AGAINST THE WEIGHT OF THE EVIDENCE IN THE ABSENCE OF SUFFICIENT TESTIMONY ESTABLISHING THAT THE VICTIM SUFFERED SERIOUS BODILY INJURY. (Not Raised Below.)
POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S QUESTIONING OF A POLICE OFFICER WHICH ELICITED THE DEFENDANTS' INVOCATION OF THE MIRANDA RIGHTS, THEREBY INFRINGING UPON HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT. (Not Raised Below.)
POINT IV: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT III CHARGING AGGRAVATED ASSAULT. (Not Raised Below.)
POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSSIVE.
In a supplemental brief, defendant raised the following points:
POINT I: DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WAS VIOLATED AND COMPROMISED [DUE] TO THE FACT A JUROR AT TRIAL TAINTED DECISION OF VERDICT BECAUSE SHE WAS FRIENDS WITH [THE TRIAL JUDGE] WHO PRESIDED OVER THE DEFENDANT'S TRIAL.
POINT II: THE PROSECUTOR MADE IMPERMISSIBLE STATEMENTS DURING OPENING ARGUMENT IN VIOLATION OF DEFENDANT'S RIGHTS TO A FAIR TRIAL.
We rejected these contentions and affirmed his conviction. We remanded for the limited purpose of correcting the judgment of conviction to reflect merger of two offenses. State v. Mitchell, No. A-4235-01T4 (App. Div. June 13, 2003), certif. denied, 178 N.J. 249 (2003).
Defendant then filed a PCR petition contending that one of the jurors should have been excused, challenging alleged improper statements by the prosecutor at his trial, challenging his sentence, and alleging that his trial counsel was ineffective. After his petition was denied, he moved for reconsideration on the issue of juror bias. He also sought reconsideration of the NERA sentence. Defendant contended that the trial court should have disqualified a juror who was the mother of one of the judge's son's former girlfriends. In rejecting this argument, the judge indicated on the record that he knew the prospective juror only in passing, he had questioned her extensively on voir dire, and neither attorney asked to have her stricken. The judge also found there was overwhelming evidence of defendant's guilt and no reason to believe that a different juror would have cast a not guilty vote. The judge also found no error in the NERA sentence, which required that defendant serve a three year period of parole supervision after his release from prison. N.J.S.A. 2C:43-7.2c.
On this appeal, defendant raises the following points for our consideration:
POINT I: DEFENDANT WAS DEPRIVED OF HIS RIGHTS TO PRESENCE AT SIDEBAR DURING VOIR DIRE AND TO PEREMPTORY CHALLENGE. (Not Raised Below.)
POINT II: DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY BY THE TRIAL COURT'S FAILURE TO EXCLUDE [A JUROR] FROM THE PANEL IN LIGHT OF HER FRIENDSHIP WITH THE TRIAL JUDGE AND HER EXPRESSED CONCERNS ABOUT SERVING ON THE JURY GIVEN THEIR RELATIONSHIP. (Raised Below.)
POINT III: DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL ERRORS WERE CUMULATIVE AND CREATED A REASONABLE PROBABILITY THAT THEY MATERIALLY AFFECTED THE OUTCOME OF THE DEFENDANT'S CASE. (Raised Below.)
POINT IV: THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
POINT V: ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED BY THE COURT IN SUPPORT OF HIS MOTION FOR POST-CONVICTION RELIEF.
Many of these arguments were or could have been raised on defendant's direct appeal and therefore are procedurally barred in a PCR petition. R. 3:22-4; R. 3:22-5. Further, we conclude that all of defendant's appellate contentions are without merit and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
On this appeal, defendant once again raises a challenge concerning one of the jurors. Because defendant raised the juror issue on direct appeal, and we addressed and rejected his argument, he is barred from re-raising the issue in a PCR petition. R. 3:22-5. However, we also conclude the argument is without merit.
Defendant contends that he was not permitted to be present at sidebar when the voir dire of the juror was taking place. However, his reliance on State v. W.A., 184 N.J. 45, 53 (2005), is misplaced. Under State v. Colbert, 190 N.J. 14, 24 (2007), the procedures outlined in W.A. have only prospective application. Moreover, although he was not physically present at sidebar, defendant claims that he heard the essence of what was said. Defendant could have discussed the matter with his attorney when the attorney returned to the counsel table. In fact, the record reflects that after this juror was questioned, defense counsel conferred with his client several times, before advising the court that the jury was satisfactory. Finally, we agree with the trial judge that there was no reason to exclude the juror. The judge had only a passing acquaintance with the juror, who was the mother of one of his son's ex-girlfriends from years before. And the juror indicated that she could be impartial.
Defendant's argument concerning an alleged missing witness is not supported by any legally competent evidence as to what the witness knew or would have said if called to testify. Mere "bald assertions" are insufficient to warrant an evidentiary hearing on a PCR petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Finally, defendant's challenge to his sentence is without merit. Under NERA, a three year period of parole supervision was mandatory and therefore had to be included in the judgment of conviction even if the judge did not specifically mention the parole supervision component of the sentence on the record. N.J.S.A. 2C:43-7.2c. Further, on the record on September 26, 2006, as part of the PCR hearing, the judge reconsidered and re- affirmed the sentence, including the three year period of parole supervision.
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