On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 04-08-00585 and 05-06-00542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
Defendant appeals from a denial of his petition for post-conviction relief (PCR). The crux of defendant's PCR arguments relate to sentences he received on his drug-related trial convictions and three unrelated offenses. He contends primarily that his counsel was ineffective because defendant was: (1) sentenced to a three-year prison term on a fourth-degree separate violation of probation (VOP); and (2) purportedly fined $1000 on that VOP. He also argues that the judge misapplied aggravating factor eleven, and failed to dismiss an unrelated motor vehicle violation. We affirm.
After a two-day trial, a jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), third-degree possession of CDS with intent to distribute, and third-degree distribution of CDS. Before sentencing, defendant pled guilty to three additional offenses: third-degree possession of CDS (05-06-542); a VOP on a previous conviction for fourth-degree obstruction of justice (04-08-585); and driving while on a suspended list.*fn1
After making the appropriate mergers, the judge sentenced defendant on the trial convictions to four years in prison. Pursuant to a plea agreement, the judge imposed a three-year prison term on 05-06-542 concurrent to four years in prison on 04-08-585, consecutive to the sentences on the trial convictions. As a result, defendant received an aggregate sentence of seven years in state prison. The judge imposed the appropriate fines and penalties.
On direct appeal we affirmed his drug-related convictions but remanded for re-sentencing because the judge misapplied aggravating factor number eleven. State v. Lawhorn, No. A-4561-05 (App. Div. October 10, 2007). The Supreme Court denied defendant's petition for certification on January 24, 2008. State v. Lawhorn, 193 N.J. 587 (2008).
On June 9, 2008, defendant filed his pro se petition for PCR. Defense counsel was appointed and on November 12, 2008, he filed a supplemental brief in support of defendant's PCR petition. On March 16, 2009, the judge conducted oral argument, granted and denied in part defendant's petition, and re-sentenced defendant in accordance with our instructions. Without applying aggravating factor number eleven, the judge re-sentenced defendant to four years in prison on the trial convictions. The judge sentenced defendant to eighteen months in prison on 04-08-585, concurrent to three years on 05-06-542, consecutive to the sentence on the trial convictions. The aggregate sentence remained seven years in state prison. The judge imposed the appropriate fines and penalties. This appeal follows.
On appeal, defendant raises the following points:
BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD REVERSE THE TRIAL COURT'S DETERMINATION TO DENY THIS PORTION OF HIS PETITION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD REMAND THE MATTER TO THE TRIAL COURT WITH DIRECTION TO GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE
PETITIONER'S PETITION FOR POST-CONVICTION RELIEF IS NOT ...