On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-06-2664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges R. B. Coleman and Lihotz.
Appellant filed a pro se supplemental brief.
Defendant Hakiem D. Butler appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm the denial of his petition, substantially for the reasons set forth by Judge Michael A. Petrolle in his written opinion.
Defendant was convicted by a jury on eleven counts that included carjacking, conspiracy, robbery and weapons charges. The sentencing court imposed an aggregate sentence of twenty- five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal, and we affirmed his convictions and sentence. State v. Butler, No. A-4857-99 (App. Div. Feb. 21, 2002). The Supreme Court denied his petition for certification. State v. Butler, 172 N.J. 357 (2002).
The convictions arose out of a Newark robbery of victims Louis Pretell, Edison Guerra, and Julio Pretell. Defendant and co-defendant Stephen Green stole money and jewelry from the three victims at gunpoint outside of a chicken restaurant while the three were walking to their Acura Integra. While pointing his gun at Louis, defendant then demanded the key to the Acura and eventually took possession of the car. Four days later, the vehicle was spotted by Newark police officers who gave chase. The vehicle crashed into a tree, and defendant jumped out of the car and fled on foot, but was eventually apprehended by the police.*fn1
Defendant filed a PCR petition on May 23, 2003. Judge Petrolle denied the petition on July 3, 2008 in a written opinion. Defendant filed an appeal from the denial of PCR. Defendant now presents the following issues for our consideration in his appeal.
POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL; IN THE ALTERNATIVE THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF TRIAL COUNSEL'S AND APPELLATE COUNSEL'S INEFFECTIVENESS WAS ESTABLISHED.
A. Trial counsel's failure to call Stephen Green as an exculpatory witness mandates that this matter be remanded for an evidentiary hearing.
B. Appellate counsel's failure to order and/or review the Wade hearing transcripts and to raise the denial of defendant's constitutional right to confrontation constitutes reversible error; in the alternative, this matter must be remanded for an evidentiary hearing.
In the pro se supplemental brief filed by defendant, he raises the following assertions of error:
POINT I: NEW JERSEY REQUIRES POST-CONVICTION RELIEF CLAIMS TO BE THOROUGHLY INVESTIGATED BY LOWER COURTS BEFORE A ...