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State of New Jersey v. Frank Vandever

August 26, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK VANDEVER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-03-0407.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2011

Before Judges Ashrafi and Nugent.

Defendant Frank Vandever appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other violations of his right to a fair trial. We affirm.

In March 1992, defendant was indicted by a Bergen County grand jury on five counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and two counts of fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. The charges arose from a spree of robberies of 7-Eleven stores and a jewelry store in Bergen County in January 1992. The facts relevant to the crimes were recited in our opinion on defendant's direct appeal, State v. Vandever, No. A-1075-98 (App. Div. January 22, 2003) (slip op. at 2-6), and will not be repeated here.

In a nutshell, defendant had been serving a life sentence in Connecticut for murder. He and a co-defendant, Ronald Rutan, had escaped from the Connecticut prison and were hiding at a motel in Rockford County, New York. They committed the armed robberies to obtain cash while in hiding. Rutan was arrested at the motel on January 16, 1992, and defendant was arrested at a mall parking lot in Paramus two days later. A few hours after his arrest, defendant confessed to committing the robberies with Rutan. Parts of his confession were secretly recorded by a police detective.

Defendant was returned to Connecticut. He was not tried for the New Jersey robberies until 1998. The jury convicted him on all counts, and he was sentenced on August 7, 1998, to an aggregate term of fifty years in prison, with twenty years to be served before parole eligibility, the sentence to be served consecutively to his Connecticut sentence.

After we affirmed defendant's conviction and sentence on direct appeal, defendant attempted to file a PCR petition on August 7, 2003, exactly five years from the date of his sentencing. The petition was subsequently dismissed without prejudice and then reinstated in 2006. The trial court heard argument on the petition in May 2009 and denied it by written opinion and order dated May 29, 2009.

On appeal from denial of his PCR petition, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO ELICIT TESTIMONY FROM HIS CLIENT DURING THE MIRANDA HEARING WHICH WOULD HAVE DEMONSTRATED THE STATEMENT OBTAINED BY THE POLICE FROM THE ...


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