On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-02-87 and 03-09-553.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010 -- Decided Before Judges Skillman and Yannotti.
Defendant Henry L. Blackwell appeals from an order entered by the Law Division on August 28, 2008, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Somerset County Indictment No. 03-09-553 with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1). Defendant also was charged under Somerset County Indictment No. 04-02-87 with two counts of armed robbery, contrary to N.J.S.A. 2C:15-1(a)(2). On October 18, 2004, defendant pled guilty to the charges in both indictments and on May 13, 2005, the court imposed an aggregate sentence of fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed an appeal from the judgment of conviction, which was heard on our excess sentence calendar. We entered an order dated February 7, 2006, affirming the trial court's judgment. On July 17, 2006, defendant filed a pro se PCR petition in the Law Division. PCR counsel was assigned for defendant and an amended PCR petition was filed on July 25, 2007. Defendant alleged that he had been denied the effective assistance of counsel because his trial attorney did not pursue a diminished capacity defense and failed to seek findings on certain mitigating factors at sentencing.
On August 28, 2008, Judge Julie M. Marino filed a written opinion and order denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Counsel and defendant's expert were ineffective since they failed to prepare a diminished capacity defense.
B. Counsel failed to provide effective assistance during sentencing.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT ...