On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1964.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant Rodney Bates appeals from denial of his petition for post-conviction relief (PCR). We affirm.
The following facts were developed at a bench trial. Billy Joe Lane worked as a maintenance supervisor for the Village of Haddonfield apartment complex in Barrington, New Jersey. On March 8 and 9, 2006, Lane's crew repaired a rotting floor joist just outside apartment 262A, where defendant resided with Debra Hohing. The crew removed a small piece of flooring and replaced the joist. Lane testified that he thought the only work remaining on March 9 was to lay down carpet.
According to Lane, defendant complained to him that the work was not satisfactory. He told Lane that his crew was not going to finish the job and that he was going to call an inspector. Lane told defendant, "well f-- you. I'm going to get that work done."
According to Lane, defendant went into his apartment and came back out with a knife. Lane jumped back about three feet from defendant. Defendant told Lane, "This is what you're going -- going to get if you keep on doing it." Lane described the knife as a silver folding knife, about four fingers in length. He said defendant was "jamming it upwards."
Angel Montesino, a member of the maintenance crew, was in defendant's apartment repairing the bathroom faucet when the incident occurred. He heard commotion in the hallway. He looked and saw defendant's back. He did not see a knife but saw that defendant was making hand motions. Defendant then turned around and twisted his hand into his pocket, as if he was putting something into his pocket.
Lane called the complex manager, who called the police. Defendant got in his car and left. Defendant surrendered to police when they approached his car. No knife was recovered.
According to defendant, on March 8, Lane and his crew had removed flooring to repair the floor joist and defendant noticed that other joists were also rotted. He questioned Lane on the work they were doing. Lane cursed at defendant and refused to answer his questions, referring defendant to Montesino. Defendant and Hohing claimed that Lane's crew had finished the repair work on March 8. Dissatisfied with the repair work, defendant called a town inspector.
The next day, Montesino was repairing a faucet in defendant's bathroom, and defendant's front door was unlocked. Lane walked into defendant's apartment without knocking, getting one foot in the door. Defendant told Lane to get out. Lane left the apartment, and defendant locked the door. He then heard keys rattling outside his door. As Lane unlocked and opened the front door, defendant told him to get out. Lane left, screaming.
Defendant testified he never threatened Lane and never brandished a knife. Defendant claimed Lane fabricated the story about the knife because defendant had contacted a town inspector. The defense also claimed that management had past issues with defendant, although the trial court noted that there had been at least five years since any conflict.
Defendant was charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3a, (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, (count three).
Defendant waived his right to a jury trial. A bench trial was held before Judge Louis R. Meloni on January 9, 2007. The judge found defendant guilty on all counts. Defendant moved for a new trial pursuant to Rule 3:20-1, seeking to introduce additional testimony. The court denied the motion. Defendant was sentenced to three years' probation on each count, to run concurrently, and statutory fees and penalties were also imposed.
Defendant filed a notice of appeal on May 7, 2007, but he withdrew the appeal on August 1, 2007. An order dismissing the appeal was entered on August 20, 2007.
Defendant then filed a PCR petition, which was denied on October 11, 2007, by Judge Irvin J. Snyder. On December 6, 2007, defendant filed another PCR petition. The court vacated its previous order pursuant to Rule 1:13-1 and designated defendant's petition as his first.
Defendant filed a pro se brief in support of PCR claiming ineffective assistance of counsel and violation of his due process rights because the State failed to produce a weapon. PCR counsel also filed a letter-brief on defendant's behalf claiming ineffective assistance of counsel in trial counsel's failure to object to inadmissible hearsay testimony and failure to investigate and present mitigating factors and to argue the overvaluing of aggravating factors at sentencing.
No evidentiary hearing was held on defendant's petition. On December 11, 2008, Judge Snyder denied defendant's petition, holding that it was procedurally barred under Rule 3:22-3 because appellate review was available and because defendant failed to establish a prima facie case of ineffective ...