On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-01-0065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Fuentes.
Defendant pled guilty pursuant to a plea agreement to second-degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court sentenced defendant in accordance with the plea agreement to a ten-year term of imprisonment subject to the 85% period of parole ineligibility mandated by the No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2.
On defendant's appeal, which we heard on an excess sentence calendar, R. 2:9-11, we affirmed defendant's sentence. State v. Ray, No. 21-06T4 (March 27, 2007).
Defendant filed a petition for post-conviction relief based on the alleged ineffectiveness of his trial counsel. The trial court denied the petition for the reasons set forth in an oral opinion rendered on June 27, 2008, and amplified by a written opinion dated July 1, 2008.
On this appeal from the denial of his petition, defendant presents the following arguments:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S FAILURE TO ADVANCE AT SENTENCING ALL APPLICABLE MITIGATING FACTORS, TRIAL COUNSEL'S FAILURE TO RECOGNIZE THAT THE DEFENDANT COMMITTED THE CRIME OF THIRD DEGREE THEFT, NOT SECOND DEGREE ROBBERY; AND TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MIRANDA MOTION SEEKING TO SUPPRESS THE DEFENDANT'S STATEMENT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
A. THE DEFENDANT'S PETITION SATISFIED THE FIRST PRONG OF THE STRICKLAND/ FRITZ TEST.
B. THE DEFENDANT'S PETITION SATISFIED THE SECOND PRONG OF THE STRICKLAND/ FRITZ TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ...