On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-09-1208, 03-01-0129, 05-01-0019, 05-01-0021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Lihotz and J. N. Harris.
Defendant Dontae Davis appeals from the August 10, 2006 order denying his post-conviction relief (PCR) request to vacate his guilty plea. Our May 11, 2009 order allowed the appeal to be filed as within time.
On appeal, defendant argues:
THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO UTILIZE AND INVESTIGATE AN AUDIO TAPE THAT CONTAINED EXCULPATORY EVIDENCE. POINT II
THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO REQUEST A WADE HEARING TO DETERMINE THE ADMISSIBILITY OF A HIGHLY SUGGESTIVE SINGLE PHOTO IDENTIFICATION. POINT III
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIM AT THE MOTION TO WITHDRAW GUILTY PLEA THAT HIS PLEA WAS NOT KNOWING AND VOLUNTARY AND APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
THE APPELLANT WAS DENIED PROCEDURAL DUE PROCESS BY THE TRIAL COURT, DEFENSE ATTORNEY DAVID SCHROTH AND DEFENSE ATTORNEY LANCE D. BROWN WHERE THEY FAILED TO COMPLY WITH THE COURT RULES GOVERNING APPEALS.
THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
These facts are taken from the plea allocution hearing, held on January 4, 2006. On May 4, 2004, defendant was arrested in connection with a number of criminal incidents for which he was later indicted. The record contains piecemeal information regarding the nature of the events and the resulting charges.*fn1
We glean these charges were included among those in the numerous indictments: (1) on May 16, 2002, defendant acted as a lookout assisting the street sale of narcotics, resulting in charges under Indictment No. 02-09-1208 that included third-degree aiding and abetting possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-10; (2) on November 1, 2002, in retaliation for an earlier incident, defendant fired one or more shots from the front passenger seat of a vehicle into a residence as he rode past the home, for which he was charged in Indictment No. 03-01-0129 with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); (3) on April 20, 2004, defendant and another confronted two individuals walking along the street, and defendant lifted his shirt revealing a gun while his companion robbed the men, for which Indictment No. 05-01-0019 charged defendant with armed robbery, N.J.S.A. 2C:15-1(a); and (4) on April 29, 2004, defendant shot and robbed Juan Morales as Morales began to walk away following an altercation, for which defendant was charged under Indictment No. 05-01-0021 with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), second-degree robbery, N.J.S.A. 2C:15-1(b) and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a).
Once defendant was apprehended, he was taken into police custody, placed under arrest and directed to an interview room. While unattended in the police interview room, defendant removed a ceiling tile and climbed into the ceiling to hide. He was charged under Indictment No. 04-09-0617 with third-degree criminal attempt to commit escape, N.J.S.A. 2C:29-5(a). Later he was separately charged with ...