On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-04-0798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 -- Decided Before Judges Yannotti and Skillman.
Defendant Shawn Peterson appeals from an order entered by the Law Division on August 25, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Bergen County Indictment No. 99-04-0798 with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (counts two and three); first-degree robbery, N.J.S.A. 2C:15-1 (counts four and seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and eight); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts six and nine).
On October 4, 1999, defendant pled guilty to counts four and seven. In the plea agreement, the State agreed to recommend the imposition of concurrent, twenty-year terms, each with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to the dismissal of the other charges.
Defendant was sentenced on November 12, 1999. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court sentenced defendant to concurrent, eighteen-year terms, each with a parole ineligibility term as required by NERA. The court also imposed appropriate fines and penalties. Defendant did not file a direct appeal from the judgment of conviction dated January 14, 2000.
Defendant filed a pro se petition for PCR dated February 20, 2009. With his petition, defendant submitted a certification seeking leave to file the petition beyond the time required by Rule 3:22-12. The court assigned PCR counsel to represent defendant, and counsel filed an amended PCR petition with a supporting brief.
In the brief, PCR counsel argued that defendant's petition should not be barred on procedural grounds. He also argued that defendant was denied the effective assistance of trial counsel because defendant's attorney failed to file a motion to consolidate the charges in this case with those pending in Hudson and Passaic counties. He additionally argued that trial counsel was deficient because he did not file a direct appeal and/or a timely PCR petition.
The court heard the matter on August 25, 2009, and placed its decision on the record on that date. The court held that the time bar in Rule 3:22-12 did not preclude consideration of the petition. The court therefore considered the matter on the merits. The court found that defendant had not been denied the effective assistance of trial counsel. The court noted that, under the plea agreement negotiated by defendant's attorney, seven of the nine counts of the indictment had been dismissed and the court had imposed concurrent, eighteen-year terms, rather than the concurrent, twenty-year terms permitted by the agreement.
The court also noted that counsel was not deficient in failing to seek consolidation of the charges with those in Hudson and Passaic counties, because there was no indication that defendant would have received a shorter sentence if the charges had been consolidated. The court entered an order on August 25, 2009, denying PCR.
On appeal, defendant raises the following arguments for our consideration:
POINT I: THE TRIAL COURT PROPERLY CONCLUDED THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY ...