On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges R. B. Coleman and J. N. Harris.
Defendant Tonya R. Wood appeals from a February 24, 2009 order denying her petition for post-conviction relief (PCR). She asserts she made a prima facie showing that her counsel was ineffective for failing to inform her that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to her sentence. Defendant additionally asserts that the PCR court erred by not conducting an evidentiary hearing. Based on these errors, defendant argues she should be permitted to withdraw her plea. We have considered her arguments in light of the facts and applicable law, and we affirm the order denying her petition.
Defendant worked at the Ulta Store in the Watchung Square Mall in the Borough of Watchung. On June 24, 2004, the store was robbed by three masked men. Two of the men appeared to be carrying handguns. During the police investigation, defendant admitted she purposely left the door unlocked so the robbers could enter the store. Defendant confessed to making the arrangement with her boyfriend, Troy Keets. She identified two of the three robbers as brothers, Oshea and Tysean Clark. Although defendant did not identify Keets as the third robber, after Oshea Clark was arrested, he admitted his involvement and identified Troy Keets as the third robber. Defendant received $300 as her share of the robbery proceeds.
On August 5, 2004, the grand jury returned a two-count indictment charging defendant with conspiracy to commit robbery, N.J.S.A. 2C:5-2(a), and first-degree robbery in violation of N.J.S.A. 2C:15-1(a)(2) and N.J.S.A. 2C:15-1(b). In a plea agreement, which included the promise of her cooperation at the trial of Troy Keets, defendant's first-degree robbery charge was amended to a second-degree offense. Under the agreement, the prosecutor agreed to recommend a five-year sentence with an eighty-five percent period of parole ineligibility pursuant to NERA. The sentencing court followed the recommended plea agreement denying defendant's request to be sentenced as a third-degree offender.
Defendant filed her notice of appeal with a motion to file the appeal nunc pro tunc. Her motion was denied, and the appeal was dismissed. On May 5, 2008, defendant filed for post-conviction relief. Following a hearing, the PCR court denied defendant's petition. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I: THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT II: THE FAILURE OF TRIAL COUNSEL TO EXPLAIN TO DEFENDANT THAT THE NO EARLY RELEASE ACT WOULD STILL BE APPLICABLE IF SHE PLED TO SECOND DEGREE ROBBERY, DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We find no merit in any of these arguments.
In Point I of her appellate brief, defendant asserts that the PCR court alluded to a procedural bar, but did not decide that issue, deciding instead that it would decide the merits of defendant's petition. Under such circumstances, defendant has suffered no prejudice and the arguments raised in Point I ...