On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-11-1331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Payne.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Two indictments were returned against defendant and a co-defendant, Deandre McKenzie. One related to a burglary and allied offenses committed on September 10, 1996, in Hillside, and the second related to a burglary and allied offenses committed on September 13, 1996, in Scotch Plains. Both indictments charged defendant with unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. McKenzie and defendant were tried together, but the indictments were tried separately. The Hillside charges were tried first and resulted in defendant being convicted of the unlawful possession charge, among others, but acquitted of the charge of possession for an unlawful purpose. When the Scotch Plains charges were tried, defendant was convicted of robbery while armed, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and aggravated assault, N.J.S.A. 2C:12-1b. Defendant was subject to a mandatory Graves Act extended-term sentence, and the trial court sentenced defendant to a custodial term of fifty years, with a twenty-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Watkins, No. A-3315-98 (App. Div. Aug. 8, 2000).
Defendant thereafter filed a timely petition for post-conviction relief.*fn1 Counsel was assigned to represent defendant, and counsel prepared a brief on his behalf and orally argued the merits of defendant's contentions. After hearing argument, the trial court determined that a plenary hearing was not required and denied defendant's petition. This appeal followed. On appeal, defendant raises the following contentions:
THE DEFENDANT'S CLAIMS CONCERNING TRIAL COUNSEL'S FAILURE TO MOVE TO SEVER THE DEFENDANT'S TRIAL, AND TRIAL COUNSEL'S FAILURE TO MOVE FOR REDACTION OR TO REQUEST A N.J.R.E. 404(B) LIMITING INSTRUCTION CONCERNING THE STATE'S USE OF CO-DEFENDANT MCKENZIE'S STATEMENT WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE RAISED IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT AND THEREFORE WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY EQUIVALENT" TO THE IDENTIFICATION ISSUES RAISED ON DIRECT APPEAL.
POINT II THE DEFENDANT'S POST-CONVICTION RELIEF ARGUMENTS CONCERNING THE SENTENCE IMPOSED WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-4 BECAUSE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL AND A JUST SENTENCE, WERE VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION TO DISMISS COUNT THREE (CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) ON DOUBLE JEOPARDY GROUNDS WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG OF THE TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...