On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2555.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Defendant Lonzell Swint appeals from a December 11, 2009 Law Division order that denied his petition for post-conviction relief (PCR) without affording him an evidentiary hearing. On appeal, defendant raises the following claims:
I. IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.
II. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
III. ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.
On October 6, 2004, the Essex County Prosecutor's Office filed a juvenile delinquency complaint against defendant, charging him with committing murder and related weapons offenses on September 7, 2004, when he was seventeen years old. Less than two months later, the State moved for an order waiving the jurisdiction of the Family Part and seeking to have defendant tried as an adult in the Law Division. Because defendant was over the age of sixteen at the time of the offense, and he had been charged with the crime of murder, waiver was required so long as the State established probable cause. N.J.S.A. 2A:4A-26. At the conclusion of the January 14, 2005 waiver hearing, at which the State presented the testimony of two eyewitnesses to the shooting, the judge found probable cause and granted the State's motion to waive defendant to the Law Division. Defendant was eighteen years old at the time of the waiver.
On August 21, 2006, an Essex County grand jury indicted defendant for first-degree murder, third-degree unlawful possession of a weapon and second-degree possession of a weapon for an unlawful purpose. Following plea negotiations, defendant pled guilty to an amended charge of second-degree manslaughter, N.J.S.A. 2C:11-4(b)(1), and to unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), for which the judge sentenced him on March 23, 2007 to a nine-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 on the manslaughter charge, concurrent to a five-year term of imprisonment on the weapons offense. Defendant did not appeal his March 23, 2007 conviction.
On August 25, 2009, defendant filed a pro se PCR petition that was later supplemented by his own brief, and by a brief from assigned counsel. The petition asserted ineffective assistance of trial counsel, based on counsel's failure to "forcibly defend against the Prosecutor's motion to 'waive up' defendant to face charges as an adult." Additionally, defendant claimed that he was entitled to a trial by jury in the waiver proceeding, notwithstanding N.J.S.A. 2A:4A-26, which requires the waiver decision to be made by a judge. He maintained that the denial of his right to a trial by a jury, and without a finding of guilt beyond a reasonable doubt, denied him his Sixth Amendment right to a trial by jury in violation of the United States Constitution.
After considering the oral argument presented by the parties, Judge Ramona Santiago issued a written opinion and confirming order denying defendant's PCR petition. She held that defendant had failed to establish a prima facie case of ineffective assistance of counsel, and procedurally the petition was barred by Rule ...