On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-01-0166.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Grall.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was originally indicted for conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; purposeful/knowing murder, N.J.S.A. 2C:11-3a(1),(2); felony murder, N.J.S.A. 2C:11-3a(3); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
The charges against defendant flowed from the slaying of Kevin Llanos in Newark on July 25, 1999. Defendant, who was sixteen years old at the time, accompanied by two companions, came upon Llanos as he was sleeping in a parking lot. Llanos was wearing a gold watch, a gold bracelet, and a chain. The three decided to rob the sleeping Llanos. Llanos died from a single bullet wound to the head.
Ten days later, defendant, accompanied by his parents, surrendered. After being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and after having the opportunity to confer privately with his parents, defendant gave a voluntary statement in which he admitted shooting Llanos. Defendant was charged accordingly, and jurisdiction was waived to the Law Division.
Thereafter, defendant entered a negotiated plea of guilty to one count of aggravated manslaughter and allied offenses; he agreed to testify truthfully at the trial of one of his companions, and the State agreed to recommend a sentence not to exceed twenty years, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Another of defendant's companions also entered a similar negotiated plea, again conditioned upon testifying truthfully at the trial of the remaining participant. These two pleas were not independent of each other; rather, each plea was also conditioned upon the other pleading guilty as well, and agreeing to testify.
Subsequently, after the co-defendant filed a motion to withdraw his guilty plea, the State moved to withdraw both guilty pleas. Defendant opposed the motion, contending he was still willing to testify, as he had agreed. The trial court, however, granted the State's motion and defendant proceeded to trial.
On the second day of defendant's trial, he entered an open plea of guilty to all the charges in the indictment. At sentencing the trial court merged the conspiracy count with the robbery count and sentenced defendant to fifteen years in prison, with a five-year period of parole ineligibility. It also merged defendant's felony murder conviction with his conviction for murder and sentenced defendant to thirty years in prison, with a thirty-year period of parole ineligibility. Defendant's remaining sentence was also concurrent, and thus defendant received an aggregate sentence of thirty years in prison, with a parole ineligibility period of thirty years.
Defendant appealed, contending his sentence was excessive. We rejected that argument in an order entered January 9, 2003. State v. Usry, No. A-6703-01T4 (Jan. 9, 2003).
Defendant then filed a petition for post-conviction relief, which the trial court denied. Defendant again appealed, contending that he did not supply an adequate factual basis to support the convictions for first-degree murder or felony murder at the time he pled guilty and that the trial court should have held a hearing with respect to his claim that his trial attorney had been ineffective. We remanded the matter; while we found the record would fully support his conviction for felony murder, we agreed with defendant that the record presented to us did not contain evidence that defendant's shooting of Llanos was either purposeful or knowing. State v. Usry, No. A-3638-06T4 (App. Div. Mar. 31, 2008).
When the matter was presented to the trial court on remand, the State moved to dismiss the conviction of first-degree murder and proceed to sentencing on the conviction for felony murder. The trial court ultimately granted this motion and sentenced defendant for felony murder to thirty years in prison, with a thirty-year period of parole ...