On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0516.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Decided Before Judges Wefing and Baxter.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
A jury convicted defendant of four counts of fourth-degree contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9b and two counts of third-degree stalking, N.J.S.A. 2C:12-10b.*fn1 In light of his prior record, defendant was subject to an extended-term sentence, N.J.S.A. 2C:44-3; and the trial court granted the State's motion to sentence defendant accordingly. The trial court sentenced defendant to ten years in prison, with a five-year period of parole ineligibility on one of the stalking convictions and a concurrent five-year term, with two and one-half years of parole ineligibility, on the second stalking conviction. For each of the remaining counts the trial court sentenced defendant to eighteen months in prison, with a nine-month period of parole ineligibility; it directed that these be served concurrently with one another but consecutively to the sentence for stalking. Defendant's aggregate sentence was thus eleven and one-half years in prison, with a five-and-three-quarter-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006). State v. Barcalow, No. A-2635-05
(App. Div. July 2, 2007). At that resentencing, the trial court imposed the identical terms as it had originally. The Supreme Court denied defendant's petition for certification. State v. Barcalow, 192 N.J. 482 (2007).
Defendant thereafter filed a timely petition for post-conviction relief, asserting that he had been deprived of the effective assistance of counsel. Counsel was assigned to represent defendant in connection with this petition. After hearing oral argument, the trial court denied relief without conducting an evidentiary hearing. This appeal followed.
The charges against defendant were based upon his conduct toward his former wife and her new boyfriend. Defendant and his former wife were married in 2001 and divorced in 2003. Shortly after their marriage, he was imprisoned on unrelated charges, and the divorce occurred while he was in custody. As part of the divorce proceedings, she retained the marital residence. She then formed a new relationship and had a child with that man.
Defendant was released on parole in April 2004. Shortly after his release, he began a series of visits and telephone calls to her, all of which were unwelcome and disturbing and which she perceived as threatening. She eventually obtained a final restraining order against defendant, but that did not deter him. At one point, someone put sugar in the gas tank of her vehicle; she attributed this to defendant because she had observed him standing near her car shortly before the vandalism occurred. Defendant presented the testimony of his mother, sister and niece to counter the allegations against him. By its verdict, the jury rejected their testimony.
Defendant presents the following arguments on appeal:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
A. Trial counsel failed to investigate and call to trial an alibi witness, Goldman. Moreover, Goldman's testimony is newly discovered evidence which warrants a new trial.
B. Trial counsel failed to file a motion to set aside the verdict as against the weight of the evidence since the verdict was a result ...