On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-03-0460.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Wefing and Grall.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm, but for reasons other than those stated by the trial court.
A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(1)(2); attempted murder, N.J.S.A. 2C:5-1; conspiracy, N.J.S.A. 2C:5-2; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to an aggregate term of seventy years in prison, fifty years for murder and a consecutive twenty years for attempted murder, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant appealed his convictions and sentence, and we affirmed his convictions. The trial court, however, had attached NERA's parole disqualification provisions to the sentence for murder, as well as to the sentence for attempted murder, and in light of State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd. by equally divided Court, 168 N.J. 113 (2001), we remanded the matter to the trial court for re-sentencing. State v. Gibbs, No. A-860-00 (App. Div. May 24, 2002). At that re-sentencing, the trial court again imposed an aggregate sentence of seventy years in prison, fifty years for murder, with a thirty-year period of parole ineligibility, and a consecutive twenty years in prison for attempted murder, subject to NERA. Defendant appealed his sentence as excessive, and his appeal was heard on an Excessive Sentence Oral Argument calendar, Rule 2:9-11; we affirmed his sentence. State v. Gibbs, No. A-0758-02 (App. Div. June 9, 2003). The Supreme Court denied defendant's petition for certification. 174 N.J. 547 (2002).
In our earlier opinion, we summarized the facts underlying defendant's convictions in the following manner:
During the early morning hours of October 22, 1998, in the parking lot of a bar, defendant shot John Byrd and Alex Crawford. Crawford died and Byrd survived. On the evidence presented[,] the jury could have found the following additional facts. Defendant and Byrd had had a contentious relationship for some period of time. Byrd was the bigger man, and on prior occasions had taunted and struck defendant. Byrd had previously pulled a gun on defendant and while defense witnesses testified that Byrd had a gun on October 22, 1998, those witnesses did not report such information to the police and no gun was found on Byrd after defendant shot him. The jury certainly could have concluded that Byrd was unarmed when he was shot.
Earlier in the evening of October 21, Byrd allegedly gave defendant threatening looks and called defendant names when they were both inside the bar. Byrd also boasted that he owned "big dogs and big guns." Defendant left the bar and walked back to his sister's apartment. He retrieved his own dog and a nine millimeter handgun. Defendant's cousin, Thomas Allen, took the gun from defendant before returning to the bar. When the two men returned to the bar's parking area, defendant confronted Byrd and challenged him to a fight. Defendant pulled up his shirt to show Byrd he was unarmed. Byrd testified that he took off his jacket in anticipation of a fight, but the fight was preempted by the shooting. Defendant testified he thought he saw a chrome gun in Byrd's waistband. Allen handed defendant the gun he was holding for defendant, and defendant proceeded to shoot Byrd three times. Byrd fell to the ground and defendant stood over him, firing multiple shots at him. Alex Crawford, essentially an innocent bystander, approached defendant with his hands raised, perhaps in an effort to stop defendant [from] shooting Byrd.
Defendant then shot Crawford twice and walked away. Crawford died from his wounds.
Byrd was shot so many times that paramedics ran out of dressings for his wounds, but he lived. The evidence was that defendant had fired seventeen shots, the maximum capacity of his nine millimeter handgun.
Defendant filed a timely petition for post-conviction relief, and counsel was assigned to represent defendant, who prepared and submitted a brief on his behalf. After oral argument, the trial court gave a written opinion setting forth its reasons for denying defendant's petition, and this appeal followed. The record does not disclose a reason for the gap of four years between defendant's initial PCR petition and the matter being heard by the trial court.
On appeal, defendant raises the following contentions for our consideration.
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENSE PETITION FOR POST CONVICTION RELIEF OR, IN THE ALTERNATIVE, IN NOT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ...