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State v. Battle

April 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN J. BATTLE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-10-1214.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2010

Before Judges Stern and Sabatino.

Defendant Kevin J. Battle appeals the trial court's denial of his petition for post-conviction relief ("PCR").

The PCR petition related to convictions of defendant that arose out of three separate indictments in 2003. One indictment charged defendant with second-degree robbery of a retail store manager and two other indictments charged him with third-degree shoplifting.

Defendant, who is indigent, was assigned a Public Defender. Disagreements arose between defendant and his assigned attorney. Defendant requested a substitute, but the Public Defender's Office declined to provide him with a different attorney.

Prior to the scheduled trial date, defendant appeared before the trial judge, Judge Marvin E. Schlosser, in the presence of the assigned attorney. Judge Schlosser explained to defendant that he could not pick and choose his attorney from the Public Defender's Office. The judge further advised that, unless defendant retained a private attorney at his own expense, he could either represent himself or he could choose to take advantage of the advice of the assigned counsel. After considering his options, defendant agreed to authorize his assigned counsel to attempt to negotiate a plea.

After speaking further with his assigned counsel, defendant entered into what the record describes as an "open plea" of guilty to the three charges. Thereafter, the court sentenced defendant on the second-degree robbery to a custodial term of nine years, with an 85 percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to three years on each of the two shoplifting indictments, sentences which would run concurrent with one another but consecutive to the robbery sentence. The court made all three sentences consecutive to a sentence that defendant was already serving on an unrelated charge from Camden County.

Defendant filed a direct appeal of his sentence, contending it was excessive. We affirmed, but the New Jersey Supreme Court subsequently remanded the sentence to the trial court for further consideration in light of the Court's supervening opinion in State v. Natale, 184 N.J. 458 (2005). See State v. Battle, 185 N.J. 289 (2005).

Following the Natale remand, Judge Patricia R. LeBon resentenced defendant in February 2006 to the same three prison terms, but this time made them all concurrent with one another. She specified, however, that the three concurrent sentences would run consecutive to the unrelated Camden County sentence, for which defendant was already incarcerated. Defendant filed an appeal of the resentencing disposition, but he later withdrew it.

In August 2006, defendant filed a PCR application with the trial court, attempting to vacate his robbery conviction. Defendant mainly argued that he had been deprived, in various respects, of the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland test in New Jersey). After hearing oral argument, Judge LeBon denied the PCR application, finding no need to conduct an evidentiary hearing.

On appeal of the denial of PCR relief, defendant raises the following points ...


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