On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-06-0734.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Fisher and Fasciale.
In this appeal of an order denying his petition for post-conviction relief (PCR), defendant argues, among other things, that he was denied the effective assistance of both his trial and PCR counsel, that the PCR judge applied the wrong standard in denying relief, and that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, is unconstitutional. We find no merit in these arguments and affirm.
At trial, the State sought to prove that defendant Eli Bethea and co-defendant Emanuel Ross kidnapped Jerome Garrison and took him to an abandoned apartment. There, defendant and Ross stripped, tied and gagged Garrison and tortured him over the course of four hours. Water was boiled on a stove and thrown on Garrison. Defendants doused him with bleach and pressed a heated wire hanger against his body. They also took turns terrorizing Garrison by thrusting a handgun into his mouth.
In support of its case, the State relied on photographs taken by defendants that depicted the torture of Garrison in the abandoned apartment, as well as defendant's five-page confession. Based on this and other evidence, the jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a); third-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(d). After all appropriate mergers and application of NERA and the Graves Act, N.J.S.A. 2C:43-6, defendant was sentenced to a twenty-five year prison term with an 85% period of parole ineligibility on the first-degree kidnapping conviction, a consecutive eight-year prison term on the second-degree aggravated assault conviction, and a concurrent eighteen-month prison term on the fourth-degree weapons conviction.
In affirming the judgment of conviction by way of an unpublished opinion, we declined to consider the argument then raised by defendant that he was denied the effective assistance of counsel, finding it more appropriately considered on a future application for post-conviction relief. State v. Bethea, No. A-6547-01T3 (App. Div. May 13, 2004) (slip op. at 4).
On October 15, 2002, defendant filed a pro se PCR petition, which was amended in August 2004 and again in August 2006. The petition was ultimately denied on July 31, 2008, by way of the PCR judge's written decision.
In appealing the denial of his PCR petition, defendant argues by way of his counsel's brief:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE R. 3:22-2 CRITERIA.
II. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CONSIDER CO-DEFENDANT'S FIFTH AMENDMENT RIGHTS AND FAILURE TO OBJECT TO THE DEFENDANT BEING TRIED FIRST SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ*fn1 TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 9 AND 10 OF THE NEW JERSEY CONSTITUTION.
IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE SUBMISSIONS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF ...