March 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RYNE M. USHER-SWIFT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-0766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011
Before Judges Yannotti and Skillman.
A jury found defendant guilty of two counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1; two counts of conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(1); carjacking, in violation of N.J.S.A. 2C:15-2(a)(2); conspiracy to commit carjacking, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2(a)(2); two counts of theft, in violation of N.J.S.A. 2C:20-2(b)(3); and terroristic threats, in violation of N.J.S.A. 2C:12-3. The trial court sentenced defendant to a fifteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for one of the robberies, and a consecutive twenty-year term of imprisonment, also subject to NERA parole ineligibility, for the carjacking.
In addition, the court imposed a concurrent fifteen-year period of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, for the other robbery, and a concurrent three-year term for terroristic threats. The court merged defendant's other convictions.
On appeal, we affirmed defendant's convictions in an unpublished opinion but remanded for resentencing. State v. Usher-Swift, No. A-5072-04T4 (March 21, 2006). The Supreme Court denied defendant's petition for certification. 187 N.J. 491 (2006).
At the resentencing, the court imposed a ten-year term of imprisonment, with the 85% period of parole ineligibility mandated by NERA, for the one robbery conviction, and a consecutive fifteen-year term of imprisonment, subject to NERA parole ineligibility, for the carjacking. The court reimposed the same sentences it had imposed originally for defendant's other convictions. However, for the first time the court ordered defendant's sentence on those convictions to run consecutively to an eight-year term imposed upon him on an unrelated conviction in Essex County.
On appeal from the judgment of conviction memorializing this resentencing, which we heard on a sentencing calendar pursuant to Rule 2:9-11, we concluded that "the part of the sentence imposed on remand that made defendant's sentences consecutive to his sentence on Essex County [I]ndictment 03-12- 3978-I exceeded the court's authority on the remand and is therefore invalid." Accordingly, we remanded the case to the trial court for entry of an amended judgment of conviction that deleted the part of the judgment that made defendant's sentence consecutive to the sentence imposed in Essex County, but affirmed in all other respects. State v. Usher-Swift, No. A-3911-06T4 (April 29, 2008).
Thereafter, defendant filed a petition for post-conviction relief. This petition was denied by Judge Manahan by an oral opinion delivered on November 19, 2009.
On appeal, defendant presents the following arguments:
POINT I - THE ORDER DENYING POST- CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST THE INTRODUCTION OF UNRELIABLE IDENTIFICATION EVIDENCE WAS VIOLATED.
POINT II - SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT IV - THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSITANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
(A) TRIAL COUNSEL WAS INEFFEC- TIVE IN FAILING TO OBJECT TO THE TRIAL COURT'S IDENTIFICA- TION AND ACCOMPLICE LIABILITY JURY INSTRUCTIONS, AND APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.
(B) BOTH TRIAL COUNSEL AND APPELLATE COUNSEL WERE IN- EFFECTIVE BECAUSE THEY FAILED TO COMMUNICATE WITH DEFENDANT CONCERNING TRIAL AND APPELLATE STRATEGY.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Manahan's oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that the evidence of defendant's guilt, including his confession to commission of the robberies and carjacking, was overwhelming.
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