On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-11-1562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Fasciale.
Defendant, Domingo Mann, appeals from an October 7, 2008, order denying his second petition for post-conviction relief (PCR). Thirteen and a half years after his convictions of felony murder, reckless manslaughter, robbery, conspiracy to commit armed robbery, possession of a handgun for an unlawful purpose, and possession of a handgun without a permit, defendant argues that his counsel failed to object to the jury charge on robbery and failed to advise him about his exposure to life in prison. Defendant failed to timely raise these arguments and establish a prima facie claim of ineffective assistance of counsel. We affirm.
On September 24, 1993, after merger of the various convictions, defendant was sentenced to life in prison with a thirty-year period of parole ineligibility for felony murder and other concurrent sentences. We affirmed his convictions and sentence. State v. Mann, No. A-2539-94 (App. Div. March 21, 1997) (Mann I) (slip op. at 14). The Supreme Court denied certification on June 30, 1997. State v. Mann, 151 N.J. 72 (1997). On September 24, 1999, the trial judge denied defendant's first PCR in an unpublished written opinion. We affirmed the denial of his first PCR. State v. Mann, No. A-1254-99 (App. Div. March 22, 2001) (Mann II) (slip op. at 6). On January 26, 2007, defendant filed his second PCR. In an unpublished written opinion, the PCR judge denied defendant's second PCR.
The facts leading to defendant's convictions are set forth in our March 21, 1997, unreported opinion. Mann I, supra, slip op. at 3-10. Defendant convinced co-defendants, James Payne and Douglas Wade, to rob his friend, Carlton Holmes. Defendant provided the handgun used during the robbery. During the course of the robbery, Holmes was shot and killed.
Payne and Wade pled guilty and became witnesses for the State. At trial, they testified that defendant was the mastermind of the robbery.
Defendant contended before the second PCR judge that his trial counsel was ineffective because (1) he failed to object to the robbery jury charge, and (2) he failed to advise him that he faced life in prison and that, if he had been so advised, he would have accepted the plea offer. After determining that an evidentiary hearing was unnecessary, the judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel. In denying the second PCR, the judge found that the jury instructions, taken as a whole, were sufficient to find that defendant acted with the required mental state to commit the robbery.
In his pro se brief, defendant raises the following points on this appeal:
THE POST-CONVICTION RELIEF RULES [3:22-4 AND] 3:22-12 DO NOT BAR THE COURT'S CONSIDERATION OF DEFENDANT'S CLAIM
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS WITH RESPECT TO THE JURY CHARGE AND DURING THE PLEA NEGOTIATIONS
A. Counsel [failed] to object to an erroneous jury instruction that omitted the mens rea of the offense charged
B. Trial counsel failed to properly explain the consequences of the Life Sentence ...