On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-07-1903.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011 - Decided Before Judges Fisher and Fasciale.
At the conclusion of a jury trial, defendant was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, and second-degree robbery, N.J.S.A. 2C:15-1, and later sentenced to a ten-year prison term subject to an 85% period of parole ineligibility. In her direct appeal, defendant argued the trial judge erred in denying her motion for a severance, mistakenly permitted the admission of other-crimes evidence, and imposed an excessive sentence. By way of an unpublished opinion, we affirmed defendant's conviction but remanded for resentencing. State v. Johnson, No. A-3817-02 (App. Div. Mar. 6, 2006). The Supreme Court denied certification, 187 N.J. 80 (2006), and, following our mandate, the trial judge imposed the same sentence.
On July 19, 2006, defendant filed a pro se petition for post-conviction relief (PCR), which asserted the ineffectiveness of her trial attorney. Assigned counsel withdrew the PCR petition and moved for a change of custody pursuant to Rule 3:21-10(b)(1). That motion was denied and, on October 9, 2008, defendant filed another PCR petition, which was denied for reasons expressed by the trial judge in a written opinion.
Defendant appealed the denial of his second PCR petition, presenting the following arguments for our consideration:
I. SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM POST CONVICTION RELIEF COUNSEL, THE MATTER SHOULD BE REMANDED TO THE TRIAL COURT TO ASSIGN NEW POST CONVICTION RELIEF COUNSEL TO REPRESENT HER, TO PERMIT THE FILING OF SUPPLEMENTAL SUBMISSIONS ON HER BEHALF, AND TO CONDUCT A NEW HEARING RELATING THERETO.
II. RULE 3:22-12 SHOULD NOT OPERATE TO PRECLUDE THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FROM BEING ADJUDICATED ON ITS SUBSTANTIAL MERITS.
In the first point, defendant does not challenge the trial judge's decision to deny post-conviction relief. Through current counsel, defendant acknowledges the PCR petition was "virtually barren" of factual contentions and "essentially consist[ed] of a recitation of prevailing legal principles with respect to claims of ineffective assistance of counsel." She refers to PCR counsel's arguments in the trial court as "clearly generic in nature" and "not even remotely fact sensitive," and concedes the only "factual reference whatsoever" in the PCR petition related to her claim that her trial attorney failed "to secure mitigating information from the defendant that could have been presented to the court at sentencing, thereby resulting in a longer sentence than could have been applied." She now claims that assertion is "of no moment" because her trial attorney "provided as cogent an argument as possible" on defendant's behalf at sentencing, and because she was "capably represented at the re-sentencing." In short, defendant concedes her PCR petition was without merit. Accordingly, we affirm the order under review.
Defendant nevertheless contends in this appeal that her PCR counsel was ineffective. That question is not cognizable at this stage. We cannot determine whether PCR counsel was ineffective absent the presentation of that contention in the trial court. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant must first seek post-conviction relief in the trial court on that ground before it may be considered by us. We intimate no view on the merits of that contention, nor need we now consider whether a PCR petition on that ground, if ever filed, would be timely.*fn1