On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-12-1584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9e; and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2a. As a result of plea negotiations, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. In exchange, the State agreed to dismiss the remaining counts contained in the indictment and to recommend a thirty-year custodial sentence with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant in accordance with the plea agreement, concurrent with a custodial sentence defendant was already serving in connection with an unrelated conviction.
Following our review of defendant's sentence on the Excessive Sentence Oral Argument (ESOA) calendar, we remanded the matter for re-sentencing pursuant to State v. Freudenberger, 358 N.J. Super. 162, 168-170 (App. Div. 2003) (holding that because parole supervision under NERA is unique, a defendant is entitled to be informed of NERA's special parole supervision conditions before pleading guilty to a NERA offense). Upon conclusion of the Freudenberger remand hearing, the court denied defendant's motion to withdraw his guilty plea and entered a new judgment of conviction that left the original sentence undisturbed. Defendant did not file a direct appeal from this ruling. Rather, defendant filed his PCR petition. Judge Rothstadt conducted oral argument and, at its conclusion, issued an oral decision denying defendant's petition.
On appeal, defendant raises the following points for our consideration:
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN STRICKLAND V. WASHINGTON, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),] STATE V. PRECIOS[E], [129 N.J. 451 (1992),] AND STATE V. CUMMINGS, [321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999),] UNDER R[ULE] 3:22 CRITERIA[,] THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO ALLOW THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA OR TO BE RE[-]SENTENCED BASED ON A CONSIDERATION OF ALL APPLICABLE MITIGATING FACTORS AND ALL APPLICABLE STATE V. NATALE[, 184 N.J. 458 (2000),] SENTENCING ISSUES. POINT II
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE PROSECUTOR'S IN-COURT AMENDMENT TO THE INDICTMENT VIOLATED DEFENDANT'S RIGHT TO A GRAND JURY UNDER ARTICLE I, ¶ 8, OF THE NEW JERSEY CONSTITUTION.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...