August 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OSCAR PORTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-3785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2011
Before Judges Fuentes and Kestin.
Defendant, Oscar Porter, appeals from the trial court's denial of his petition for post-conviction relief (PCR) pursuant to Rule 3:22. We affirm.
The factual and procedural details of this matter through trial were recounted in our August 30, 2007 affirmance of defendant's convictions in an unpublished decision under docket no. A-4869-05, and need not be rehearsed here. For the purposes of this appeal, it suffices to say that defendant had been charged in a nine-count indictment with attempted murder, two instances of first-degree robbery, and other crimes. After a trial, the jury acquitted defendant of one of the robbery charges and convicted him of attempted murder, a crime of the first degree, N.J.S.A. 2C:5-1, -4, and N.J.S.A. 2C:11-3; as well as the other first-degree robbery, N.J.S.A. 2C:15-1; second- degree conspiracy, N.J.S.A. 2C:5-2, -4, and N.J.S.A. 2C:15-1; and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial court declared a mistrial on the remaining counts of the indictment.
In our review of the matter on direct appeal, we affirmed the convictions and the consecutive sentences aggregating forty years, without parole eligibility for eighty-five percent of the term. In so holding, we ordered a modification of the sentence to reflect a merger of convictions that did not affect the length of the aggregate term. On December 6, 2007, the Supreme Court denied defendant's petition for certification in an order reported at 193 N.J. 276 (2007).
Defendant, pro se, filed a PCR petition dated January 18, 2008. In two expressed grounds, it asserted deprivation of defendant's Sixth Amendment right to effective assistance of counsel both at trial and on appeal. Counsel's brief on defendant's behalf was filed on December 10, 2008. It argued that several instances of ineffective representation by trial counsel had occurred, and contended that PCR was not procedurally barred by Rules 3:22-4 or -5. Defendant's pro se brief in support of his petition was filed on July 20, 2009. It argued that several instances of ineffective representation by trial counsel had occurred, and contended, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), that the matter should be remanded for resentencing because "a sentence beyond the presumptive term based on aggravating factors [had] not [been] presented to a jury."
On July 22, 2009, the trial court held a non-evidentiary hearing on the PCR petition. Two days later, the court entered an order denying the petition, accompanied by a written decision expressing the reasons for the denial. The notice of appeal was filed on February 3, 2010.
Counsel's brief on behalf of defendant advances the following arguments on appeal:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY R. 3:22 POST-CONVICTION RELIEF CRITERIA CORRECTLY.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S DECISION NOT TO PRESENT AN ALIBI DEFENSE, TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S EXCUSING JUROR FIVE WITHOUT DETERMINING WHETHER THE JUROR COULD BE FAIR AND IMPARTIAL, TRIAL COUNSEL'S FAILURE TO MOVE FOR A DISMISSAL OF THE ROBBERY CHARGE, AND TRIAL COUNSEL'S FAILURE TO MOVE FOR A VOIR DIRE OF JUROR SIX RESULTED IN A DEFICIENT PERFORMANCE, AND THE ENSUING PREJUDICE TO DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
[POST CONVICTION RELIEF SHOULD BE GRANTED BECAUSE:]
. . . TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A PRETRIAL MOTION FOR A WADE HEARING.
. . . TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO ERRONEOUS ACCOMPLICE LIABILITY INSTRUCTIONS.
. . . THE SENTENCE IMPOSED IS UNLAWFUL.
. . . TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO CALL RASHANA LUNDY AS A DEFENSE WITNESS.
. . . TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO COMMUNICATE THE TERMS OF THE STATE'S PLEA OFFER TO DEFENDANT.
. . . OF THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF.
In his pro-se supplemental brief, defendant, in a single point, advances the following arguments for our consideration on appeal:
DEFENDANT WAS SUBJECTED TO MULTIPLE INSTANCES OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT AND THE CONSTRUCTIVE DENIAL OF COUNSEL BY THE FAILURE OF TRIAL COUNSEL TO:
A. . . . MOVE FOR A WADE HEARING.
B. . . . OBJECT TO THE ERRONEOUS
ACCOMPLICE LIABILITY INSTRUCTION.
C. . . . OBJECT TO THE COURT'S
REMOVAL OF A JUROR FOR NON-PERSONAL REASONS WITHOUT ASCERTAINING WHETHER THE JUROR COULD STILL BE FAIR AND IMPARTIAL.
D. . . . OBJECT TO THE IMPROPER AND PREJUDICIAL QUESTIONING BY THE JUDGE OF A WITNESS WITH QUESTIONS DESIGNED TO ELICIT THE REQUISITE ELEMENTS OF THE ROBBERY OFFENSE.
E. . . . MOVE FOR A JUDGMENT OF ACQUITTAL ON THE ROBBERY COUNT BECAUSE OF INSUFFICIENT EVIDENCE TO SUPPORT THE ROBBERY COUNT AND THE VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.
We have engaged in a detailed examination of the record in the light of the arguments advanced by the parties, and we discern that none of defendant's arguments has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The trial court's explanations for the conclusions it reached on the issues raised in the PCR were essentially sufficient.
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