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State v. Sierra

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JONATHAN SIERRA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-12-3138.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2010

Before Judges Skillman and Fuentes.

Defendant Jonathan Sierra appeals from the order of the Law Division, Criminal Part, denying his post conviction relief (PCR) petition. We affirm.

On November 18, 1988, defendant was tried before a jury and convicted of murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2), third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). After merging the two lesser offenses with the murder charge, the court sentenced defendant to a term of life imprisonment on the murder conviction, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the conclusion of the sentencing hearing, the court found defendant's comments at sentencing contemptuous and sentenced him to a consecutive term of six months.

On direct appeal, we affirmed defendant's conviction, but vacated the NERA parole disqualifier pursuant to State v. Manzie, 335 N.J. Super. 267, 278 (App. Div. 2000), aff'd, 168 N.J. 113 (2001). State v. Sierra, No. A-5244-98 (App. Div. Nov. 5, 2001) (slip op. at 35). The Supreme Court denied defendant's petition for certification. State v. Sierra, 171 N.J. 340 (2002).

Defendant thereafter filed a timely PCR petition. By order dated July 10, 2006, the trial court denied defendant's petition. Responding to defendant's appeal, we rejected defense counsel's arguments substantially for the reasons expressed by Judge Connor. State v. Sierra, No. A-0335-06 (App. Div. Jan. 17, 2008) (slip op. at 3). Nevertheless, mindful of State v. Webster, 187 N.J. 254, 257 (2006), State v. Rue, 175 N.J. 1, 19 (2002), and Rule 3:22-6(d), we were compelled to reverse the order denying the PCR petition because defendant alleged that his PCR counsel "failed to advance grounds for post-conviction relief that defendant insisted he present." Sierra, supra, No. A-0335-06 (slip op. at 3).

Because the record before us at the time did not permit us to definitively determine whether PCR counsel had ignored defendant's requests to present his arguments, in violation of Rule 3:22-6(d), we "remand[ed] the case to the trial court to determine whether there was such a violation. If such a violation is found, the court should assign new counsel to represent defendant on his petition and conduct a new hearing in conformity with Rue and Webster." Id. at 10.

On remand, after assigning new counsel to defendant, Judge Connor considered all of the arguments presented by that counsel, including the arguments not raised by defendant's original PCR counsel. Thereafter, Judge Connor rejected these arguments and again denied defendant's PCR petition. The court's ruling was memorialized in an order dated September 5, 2008. In lieu of restating Judge Connor's reasoning, we incorporate by reference his well-reasoned analysis and ultimate conclusion as reflected in the transcript of the PCR hearing conducted on September 5, 2008.

Defendant now appeals raising the following arguments.

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Connor in his oral opinion delivered from the bench on September 5, 2008.

Affirmed.

20100818

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