On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2011
Before Judges Fuentes and Ashrafi.
Defendant John Holt appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel at his sentencing. We affirm.
On January 20, 2004, defendant committed an armed robbery of a check cashing business. He was arrested outside the business immediately after the robbery, and a loaded gun was recovered from him. The police were waiting as he left the premises because they had received information from a confidential informant that defendant planned to commit the robbery. After his arrest, defendant made statements that he robbed the check cashing store because he needed money.
In March 2005, defendant was indicted on six counts: 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; fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3f; third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. On August 1, 2005, defendant entered into a plea agreement and pleaded guilty to the armed robbery charge. The plea agreement provided for a seventeen-year sentence with eighty-five percent of that term to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On September 9, 2005, defendant was sentenced in accordance with the plea agreement. He did not appeal the sentence.
On June 13, 2007, defendant filed a pro se motion to correct his sentence under Rule 3:21-10b because it was allegedly an illegal sentence. The trial court treated defendant's motion as a petition for post-conviction relief under Rule 3:22. Counsel was appointed, and he filed a brief and an affidavit by defendant in support of the petition.
Defendant asserted that he had been induced to commit the robbery by the confidential informant but had agreed to enter a guilty plea rather than pursue an entrapment defense because of his extensive criminal record. He claimed the informant had set him up to be arrested by urging him to commit the robbery, supplying the gun and a stolen vehicle, and fixing the time and location of the robbery. He argued his attorney at the time of the sentencing provided ineffective assistance in that he did not ask the court to find mitigating factors arising out of a potential entrapment defense. Defendant did not seek to withdraw his guilty plea but only a reduction of his sentence.
The PCR court heard argument and denied the motion without holding an evidentiary hearing. Defendant then filed this appeal. Before us, he argues:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING.
THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER ...