On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Payne.
Defendant, Ian Lemons, was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); first-degree attempted murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:5-1 (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count eight) and two counts of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7 (counts nine and ten). He was sentenced to an aggregate term of imprisonment of fifty-four years with parole ineligibility of forty-two years, three months and nineteen days.
On appeal, defendant challenged the judge's determination not to hold a Wade*fn1 hearing because there was no showing that the identification procedures that were utilized were suggestive.
He challenged the trial judge's ruling that he could not confront the victim with a photograph of a person who looked like defendant to challenge his identification, when there was no evidence of third-party guilt. He claimed that counsel was ineffective in failing to timely move for a Wade hearing, in failing to effectively challenge the victim's eye-witness identification and in failing to adequately prepare for trial. Additionally defendant challenged his sentence on several grounds. In a pro se supplemental brief, defendant contended that the police could not issue an arrest warrant by signing the jurat on the complaint. We affirmed in an unpublished opinion. State v. Lemons, No. 1886-05 (App. Div. July 13, 2007), and certification was denied. State v. Lemons, 192 N.J. 598 (2007).
Defendant then sought post-conviction relief (PCR), which was denied without an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
(1) Counsel was ineffective by failing to conduct adequate pre-trial preparation including adequate investigation of an alibi, denying defendant effective counsel.
(2) Trial counsel was ineffective by not requesting a continuance in the trial in a timely manner or by formal motion.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
C. DEFENSE COUNSEL'S FAILURE TO OBJECT TO TESTIMONY ABOUT INFORMATION RECEIVED CONCERNING MR. LEMONS AND HIS OWN INCOMPETENCE IN REINFORCING THAT TESTIMONY DURING CROSS EXAMINATION DENIED MR. LEMONS HIS RIGHT TO COMPETENT COUNSEL AND A FAIR TRIAL.
U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10.
D. DEFENSE COUNSEL FAILED TO ASK FOR A MISTRIAL AND/OR A RE-OPENING OF THE "WADE" HEARING AFTER TESTIMONY DURING THE TRIAL SHOWED A VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES, THEREBY DENYING DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL.
E. COUNSEL FAILED TO CONSULT OR CALL EXPERTS DENYING MR. LEMONS HIS RIGHT TO A FAIR TRIAL.
F. COUNSEL WAS INEFFECTIVE FOR FAILING TO ENTER ALL APPROPRIATE OBJECTIONS DURING THE TRIAL, DENYING ...