On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 96-10-3394 and 96-10-3395.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Wefing, Grall and LeWinn.
Defendant appeals from the November 2, 2007 order of the Criminal Part denying his petition for post-conviction relief (PCR). We affirm.
This case has a somewhat convoluted procedural history, which we summarize as follows.
In 1996, defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-4(a). A separate indictment charged defendant with second-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-7.
Tried to a jury in February 1998, defendant was convicted of the lesser-included offense of second-degree reckless manslaughter, as well as first-degree robbery, second-degree aggravated assault, and the weapons offenses. At sentencing on May 20, 1998, the trial judge granted defendant's motion for a judgment of acquittal on the first-degree robbery charge. The judge then sentenced defendant to an aggregate term of forty years with a twenty-year parole ineligibility period, to be served consecutively to the thirty-year sentence defendant was then serving for a 1997 first-degree manslaughter conviction.
Defendant appealed, and we affirmed his convictions but remanded for re-sentencing. State v. Dixon, No. A-2255-98 (App. Div. June 1, 2000) (slip op. at 8-9). The Supreme Court denied defendant's petition for certification. State v. Dixon, 175 N.J. 76 (2002). On remand, the judge sentenced defendant to an aggregate term of thirty-seven years, with a fifteen-year parole ineligibility period. Defendant appealed his sentence pursuant to Rule 2:9-11, and we affirmed. State v. Dixon, No. A-2028-00 (App. Div. October 15, 2001).
Defendant filed a pro se PCR petition on January 22, 2003, alleging that he was denied his right to the effective assistance of counsel. Defendant thereafter filed a second PCR petition on September 19, 2006. PCR counsel was assigned and filed a supporting brief on March 27, 2007. Counsel asserted the following claims of ineffective assistance: (1) trial counsel's failure to (a) have juror #6 removed from the panel; and (b) object to defendant "being sentenced to multiple extended terms to be served consecutively"; and (2) trial and appellate counsels' failure to (a) "object to the prosecutor vouching for the credibility of her witnesses in her summation"; (b) "provide effective assistance of counsel"; and (c) object to certain errors in the jury instructions.
The PCR judge scheduled oral argument on defendant's petition on November 2, 2007. On the day prior to this hearing, defendant filed a motion seeking to compel PCR counsel to withdraw due to "insurmountable conflicts . . . ." At the outset of the hearing, defendant asserted a "client and attorney breach . . . ." However, the judge announced that he had "a written decision on the case. It doesn't even really require an appearance in court." The judge noted that he considered the petition to be time-barred but, nonetheless, addressed "every issue that counsel briefed[,]" and was prepared to render a decision.
PCR counsel stated that he met with [defendant] on two occasions by way of video conference -- maybe three, actually. I've written numerous letters to [defendant]. I reviewed the complete record of [defendant's] trial and appeal, submitted a voluminous brief on behalf of [defendant] . . . . [M]oreover, I submitted about five or six supplemental briefs, pro se briefs, that [defendant] wanted submitted to the court.
And [defendant] was c.c.'d on all correspondence to the court relative to my submission of his pro se applications. . . .
[T]he time-barred issue. It wasn't a direct point of mine; however, I did . . . address it strongly in the procedural history, namely that he was re-sentenced and he filed in 2003. I recognize the court's decision, but I just wanted to put that on the record as well.
Notwithstanding the judge's representation, at the conclusion of the hearing, that he would "give all parties involved a copy of [his] written decision[,]" the judge issued only an order denying PCR on that date. That order states that relief was denied for the reasons "[e]xpressed in the court's written opinion . . . ."
Defendant filed a pro se notice of appeal on February 28, 2008; the Office of the Public Defender was subsequently assigned and filed a notice of appearance on March 27, 2008. Counsel filed a motion for "summary reversal" on August 20, 2008, ...