On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-05-0919.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Wefing and Payne.
Defendant, Frank Padro, appeals from a denial of his petition for post-conviction relief (PCR). On appeal, he raises issues that were not raised before the PCR judge, consisting of the following:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS POST-CONVICTION RELIEF ATTORNEY BECAUSE HE FAILED TO CHALLENGE DEFENDANT'S CUMBERLAND COUNTY CONVICTION AS A STRIKE THAT MANDATED A LIFE SENTENCE WITHOUT PAROLE. (NOT RAISED BELOW.)
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY WHEN HE FAILED TO CHALLENGE DEFENDANT'S CUMBERLAND COUNTY CONVICTION AS A STRIKE TO BE USED BY THE COURT IN IMPOSING A LIFE SENTENCE WITHOUT PAROLE. (NOT RAISED BELOW AT PCR HEARING.)
DEFENDANT IS NOT PROCEDURALLY BARRED BY R. 3:22-5 FROM CHALLENGING THE LEGALITY OF HIS SENTENCE.
In 2004, defendant was tried by a jury and convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree uttering of terroristic threats, N.J.S.A. 2C:12-3a, and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The convictions arose from defendant's armed robbery of a jewelry store on January 8, 2003 in Asbury Park. He was sentenced to life in prison without parole pursuant to N.J.S.A. 2C:43-7.1a, which provides:
A person convicted of a crime under any of the following: . . . N.J.S. 2C:15-1 . . . who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions, under any of the foregoing sections or under any similar statute of the United States, this State, or any other state for a crime that is substantially equivalent to a crime under any of the ...