On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011 - Decided Before Judges Sabatino and Alvarez.
Defendant Anthony K. Stokes, appeals the Law Division's order dated September 8, 2009 denying him post-conviction relief ("PCR").
After a jury trial in 2006, defendant was convicted of multiple offenses, including first-degree robbery and second-degree eluding. The State's proofs showed that defendant tried to steal two portable DVD players from a Sam's Club store. According to the State's witnesses, he threatened a store security officer with a box cutter while yelling that he was not going back to jail. He also was seen striking a police car as he attempted to flee through the store parking lot onto a roadway. At trial, the security officer and the police officer both identified defendant as the individual who committed these wrongful acts. A time lapse surveillance video from the store showed defendant attempting to take the two DVD players, and running out of the store with the merchandise in his possession.
Defendant, who had a prior criminal record, chose not to testify in his own defense. After the jury found him guilty of all counts of the indictment, defendant was sentenced to a fifteen-year custodial term on the robbery count and a consecutive seven-year term on the eluding count. The other offenses were merged by the sentencing judge. The sentence on the robbery conviction included an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In an unpublished opinion, we upheld defendant's convictions sentence on direct appeal. State v. Stokes, No. A-5076-05 (July 14, 2008). The Supreme Court denied certification. State v. Stokes, 198 N.J. 316 (2009).
Defendant then filed a PCR application, alleging that he was deprived of the effective assistance of counsel in numerous respects. After considering defendant's submissions and oral argument, the judge hearing the PCR application denied it without an evidentiary hearing. In his oral opinion dismissing the petition, the judge concluded that defendant had failed to demonstrate that his former counsel was ineffective, and also failed to show that he was actually prejudiced by the alleged deficient performance.
Defendant raises the following points in his brief on the present appeal:
DEFENDANT'S PCR MOTION SHOULD HAVE BEEN GRANTED WHERE HE SHOWED THAT TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE HIM ON HIS RIGHT TO TESTIFY, WHERE DEFENDANT IS ALLEGED TO HAVE MADE THE STATEMENT "I AM NOT GOING TO GO BACK TO JAIL," THEN REFRAINED FROM TESTIFYING DUE TO BAD ADVICE RECEIVED FROM HIS ATTORNEY.
THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL ...