On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-03-0501.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Cuff and Simonelli.
Defendant Joe Brown appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant pled guilty to first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a).
In accordance with the plea agreement, the judge sentenced defendant on the attempted murder charge to a thirteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term of imprisonment on the aggravated assault charge. The judge also imposed the appropriate penalty and assessments.
Defendant did not file a direct appeal. Instead, he filed a PCR petition contending, in part, that trial counsel was ineffective in failing to: (1) afford him the opportunity to testify before the grand jury to corroborate his alibi; (2) investigate and present a second alibi witness; and (3) seek dismissal of the indictment, which was allegedly based on hearsay and inaccurate and misleading information about the time the alleged incident took place and defendant's alibi.
Defendant also sought to withdraw his guilty plea contending he was forced to plead guilty because of counsel's deficiencies at the indictment stage. He also contended his sentence was excessive because the trial judge gave inappropriate weight to aggravating factors N.J.S.A. 2C:44-1a(3), (6), (8) and (9) and failed to apply mitigating factors N.J.S.A. 2C:44-1b (8) and (9). Defendant further claimed trial counsel was ineffective in failing to request all applicable mitigating factors.
In a written opinion, Judge Ronald Lee Reisner addressed each of defendant's arguments and denied the petition without an evidentiary hearing. The judge concluded defendant's unconditional guilty plea bars his challenge to trial counsel's failure to seek dismissal of the indictment. Addressing the merits, the judge concluded defendant would not have prevailed on a motion to dismiss the indictment because a grand jury may return an indictment based on hearsay evidence.
As to the alibi evidence, Judge Reisner concluded defendant suffered no prejudice because the State presented an alibi statement from his wife, which established defendant's whereabouts at the time of the crime. Thus, defendant's and the second alibi witness's testimony would not have introduced new alibi information.
Addressing defendant's challenge to his sentence, Judge Reisner found that defense counsel requested mitigating factors N.J.S.A. 2C:44-1b(9) and (11), and the record supported the trial judge's findings of aggravating factors 3, 6 and 9. The judge also found, and the State agreed, that the trial judge improperly double counted aggravating factor 8 because it already constituted an element of the offense. The judge concluded the trial judge failed to properly weigh the aggravating and mitigating factors. However, because defendant's sentence on both charges was within the permissible statutory ranges, the judge concluded the sentence was legal.
Finally, Judge Reisner concluded defendant failed to establish manifest injustice or that counsel's alleged deficiencies warranted ...