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State v. Clarke

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN CLARKE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-02-0177.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Skillman and Fuentes.

A jury found defendant guilty of armed robbery, in violation of N.J.S.A. 2C:15-1; felony murder, in violation of N.J.S.A. 2C:11-3(a)(3); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and conspiracy, in violation of N.J.S.A. 2C:5-2. In addition, the jury acquitted defendant of a charge of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1),(2).

The court sentenced defendant to a life sentence, with thirty years of parole ineligibility, for felony murder, and a consecutive ten-year term, with five years of parole ineligibility, for possession of a weapon for an unlawful purpose. In addition, the court imposed a concurrent term of five years imprisonment for possession of a handgun without a permit. It merged defendant's other convictions into his conviction for felony murder.

On defendant's direct appeal, we affirmed his convictions and sentence, except for the conviction for possession of a weapon for an unlawful purpose, which we vacated on the basis of merger. State v. Clark, 324 N.J. Super. 558, 563 (App. Div. 1999). The Supreme Court denied defendant's petition for certification. 163 N.J. 10 (2000).

On July 15, 2003, defendant filed a pro se petition for post-conviction relief based on the alleged ineffective assistance of his trial and appellate counsel. The trial court denied the petition by an oral opinion rendered on February 16, 2007.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I:

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO INVESTIGATE THE CASE BEFORE TRIAL.

B. TRIAL COUNSEL WAS INEFFECTIVE DURING SENTENCING.

C. COUNSEL WAS INEFFECTIVE DURING THE REMAND HEARING.

POINT II:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE IMPOSITION OF THE SENTENCE WAS IMPROPER, ILLEGAL AND UNCONSTITUTIONAL.

POINT V:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE SENTENCE WAS NOT SUPPORTED BY THE STATUTORY AGGRAVATING AND MITIGATING FACTORS.

POINT VI:

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.

POINT VII:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VIII:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT IX:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We reject these arguments substantially for the reasons set forth in Judge Heimlich's February 16, 2007 oral opinion.

Defendant's arguments are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2).

Affirmed.

20100326

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