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State of New Jersey v. Omar Mckinnon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OMAR MCKINNON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-11-1448.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2011

Before Judges Espinosa and Skillman.

Defendant appeals from the denial of his petition for post- conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant pled guilty to a four count accusation, charging him with second-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1) and (b)(4); second-degree distribution of a controlled dangerous substance, Oxycodone, N.J.S.A. 2C:35-5(b)(4); second-degree possession of a controlled dangerous substance, Oxycodone, with intent to distribute, N.J.S.A. 2C:35-5(a)(1); and second-degree possession of a firearm while committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1. The sentencing court imposed an aggregate sentence of ten years with a twenty-four month period of parole ineligibility on December 14, 2007.

Defendant did not file a direct appeal from his convictions and sentence.

Defendant filed a PCR petition on August 11, 2008, in which he argued he was denied the effective assistance of counsel; his right to a speedy trial was violated; and both a wiretap and a search warrant were based upon deficient affidavits. Defendant submitted a certification in support of his petition. At no time does he deny he is guilty of the offenses for which he pled guilty or assert that he had a colorable defense to the charges. Although he complains that certain pretrial motions were not made at his request, he has presented nothing to support a finding that any motion would have been successful.

A brief and amended petition were submitted on behalf of defendant in January 2009. In this brief, defendant raised the following additional grounds: that he was denied the effective assistance of counsel and that defendant's guilty plea was invalid because it was not intelligent and voluntary. The PCR court denied defendant's petition by order dated April 23, 2009. The court found defendant had failed to present a prima facie claim of ineffective assistance of counsel and, therefore, an evidentiary hearing was not necessary. Defendant presents the following issues for our consideration in his appeal.

POINT I

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT II

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL

POINT III

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in the PCR court's oral opinion.

Affirmed.

20110407

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