On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-10-0661.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Parrillo and Yannotti.
Defendant Richard Amos appeals from an order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(c)(2). Thereafter, the State entered into a plea bargain with defendant pursuant to which defendant pled guilty to an accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, in exchange for the State's recommendation of a sentence of twenty-two-and-one-half years with the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and agreement to move to dismiss the murder indictment. The details of the crime were set forth at time of plea, wherein defendant admitted confronting the victim with a gun, pointing it at his head, and discharging it.
The trial court sentenced defendant in accordance with the plea agreement. We heard defendant's direct appeal on an excess sentence calendar, see Rule 2:9-11, and affirmed his sentence. State v. Amos, A-1249-05T4 (Dec. 11, 2007). The Supreme Court denied defendant's petition for certification. State v. Amos 195 N.J. 419 (2008).
Defendant filed a timely PCR petition claiming that his counsel had been ineffective for failing to argue mitigating factors at time of sentencing. Defendant sought an evidentiary hearing on his claims.
On October 19, 2009, the trial court issued a comprehensive oral opinion denying defendant's petition. The judge found that the issue presented in defendant's petition was "substantially identical" to the issue previously raised and resolved on defendant's direct appeal, and therefore procedurally barred on PCR review under Rule 3:22-5. The judge also rejected defendant's claim on its merits, reasoning:
I find that all possible mitigating factors raised by the petitioner now were presented to the Court for its review, whether through [defense counsel] or through the petitioner himself and the pre-sentence report. I will note the mitigating factor numbers were not specifically mentioned by [defense counsel]. However, as I indicated, all of this was before the Court. The sentencing judge had all of the information regarding the mitigating factors. The failure of [defense counsel] to cite Mitigating Factors 2 and 11 I find had no impact on the sentencing outcome. Counsel's performance was not deficient. His failure to cite his specific statutory citation did not affect the sentence imposed by [the sentencing judge].
On appeal from the denial of his PCR petition, defendant presents the following arguments:
I. THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST-CONVICTION RELIEF AS THE CONDUCT OF TRIAL COUNSEL WAS INEFFECTIVE.
II. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
III. THE PCR COURT ERRED WHEN IT DETERMINED THAT DEFENDANT'S PETITION FOR POST-CONVICTION ...