On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0763.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). The police located, pursuant to a search warrant, over five ounces of cocaine in defendant's truck. The crux of defendant's argument is that his plea counsel failed to discuss with him the pre-trial discovery and file a motion to suppress.*fn1 We conclude that defendant failed to establish a prima facie case of ineffective assistance of plea counsel and affirm.
Defendant pled guilty to first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1). Thereafter, he retained new counsel who filed a motion to set aside the plea. The judge painstakingly reviewed defendant's plea, denied the motion, and sentenced defendant to the negotiated term of eight years in prison with thirty-three months of parole ineligibility. We affirmed the conviction on direct appeal. State v. Gallinat, No. A-4673-06 (App. Div. August 7, 2008).
Defendant then filed his petition for PCR. The PCR judge stated that the petition was procedurally barred and concluded, "[t]hese are the same issues in a different suit of clothing." The judge also determined, substantively, that defendant failed to make out a prima facie case of ineffective assistance of PCR counsel. This appeal followed.
On appeal, defendant raises the following points:
THE COURT ERRED IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5 IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S PETITION
RAISED SIXTH AND FOURTEENTH AMENDMENT CONSTITUTIONAL ISSUES THAT WERE NOT ENCOMPASSED ON DIRECT APPEAL.
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE BY [HIS PLEA] ATTORNEY D.M., THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT ...