On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-4396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
Defendant Kalee Coleman*fn1 appeals from the December 18, 2008 written decision that denied his petition for post-conviction relief (PCR).*fn2 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
On May 31, 2002, following a verbal confrontation with Jose Gonzalez, defendant struck Gonzalez in the face causing Gonzalez to fall backward and to strike his head on the street pavement. Gonzalez died four days later from the injuries suffered in the incident. On December 13, 2002, an Essex County Grand Jury charged defendant with second-degree manslaughter, N.J.S.A. 2C:11-4b. A jury found defendant guilty of the lesser-included offense of second-degree attempted aggravated assault, N.J.S.A. 2C:12-1b(1).
On November 7, 2003, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3a. The court sentenced defendant to a term of fifteen years of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year term of parole supervision upon release. Because the trial facts were discussed at length in our prior opinion, State v. Coleman, No. A-2392-03 (App. Div. December 21, 2004), it is unnecessary for us to detail the evidence against defendant for this crime.
On direct appeal, defendant argued that he was denied effective assistance of trial counsel when his attorney failed to call an expert witness to rebut the State's expert's opinion as to the cause of the victim's death, and that the court erred in providing the jury with instructions on the lesser-included offense of second-degree aggravated assault. In an unpublished opinion, we affirmed. Id. (slip op. at 5). On May 3, 2005, the Supreme Court denied defendant's petition for certification. 183 N.J. 586 (2005).
On July 7, 2005, defendant filed a pro se petition for PCR. On January 3, 2007, assigned counsel filed a brief in support of defendant's petition raising the following argument: 1) defendant was denied effective assistance of trial counsel by his attorney failing to: a) "object to the court's failure to charge fighting as a lesser[-]included offense"; b) "move for a mistrial and/or further voir dire of the jury due to juror taint"; c) "produce evidence of the asserted victim's intoxication"; d) investigate and interview witnesses; and e) communicate a plea bargain, or alternatively, the State violated due process by failing to offer a plea bargain. Counsel further argued: 2) defendant was denied effective assistance of appellate counsel because the attorney failed to raise as plain error trial counsel's failures, and withheld the transcripts and the State's reply brief from defendant denying him an opportunity to file a supplemental brief; 3) the court erred in instructing the jury on the necessary elements of attempted aggravated assault by not charging that to convict the jury was required to find defendant committed or failed to perform an act constituting a "substantial step" toward the crime charged; and 4) the court imposed an illegal sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).
On December 18, 2008, the trial court issued a written decision denying defendant's petition for PCR without an evidentiary hearing. It is from this decision that defendant appeals.
On appeal, defendant argues:
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS ...