On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-0691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Defendant appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR). We affirm.
A grand jury returned an indictment charging defendant with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (Counts One and Two); second-degree burglary, N.J.S.A. 2C:18-2 b(1) and/or (2) (Count Three); first-degree kidnapping, N.J.S.A. 2C:13-1b (Counts Four and Five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Counts Six and Seven); third-degree unlawful possession of a handgun, without first having obtained a permit to carry same, N.J.S.A. 2C:39-5b (Count Eight); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Nine); fourth-degree unlawful possession of a weapon (knife), under circumstances not manifestly appropriate for such lawful uses as it may have N.J.S.A. 2C:39-5d (Count Ten); third-degree possession of a weapon (knife) with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4d (Count Eleven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Counts Sixteen and Seventeen). As a result of plea negotiations, defendant pled guilty to armed robbery (Count One). In exchange, the State agreed to recommend a twenty-year custodial sentence with defendant serving no more than fourteen years, together with fines and penalties, and the dismissal of the remaining counts in the indictment.
At sentencing, the court imposed a fourteen-year term of imprisonment 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 did not file a direct appeal. Rather, defendant filed a pro se PCR petition. He was subsequently assigned counsel, and an amended verified PCR petition was filed on defendant's behalf. Defendant alleged he was denied effective assistance of counsel because his trial counsel failed to inform him of the nature of the plea and, as a result, he did not enter his guilty plea knowingly, intelligently, and voluntarily. Additionally, defendant contended he was denied his constitutional right to due process because of "improper, uncorrected assessment and weighing of aggravating and mitigating factors during sentencing proceedings."
Following oral argument, Judge Frederick J. Theemling, Jr., denied the petition, concluding no evidentiary hearing was warranted. The judge found "[p]petitioner has failed to present any evidence inside the record or outside the record to show that counsel was ineffective during the plea process[,]" and that the transcript of the plea hearing "demonstrates firmly that petitioner . . . has failed to satisfy either prong of the two-part test for ineffective assistance of counsel." As for defendant's contention that he was denied due process, the judge concluded this claim was a "[bald] assertion that is utterly bereft of any factual support from inside the record or outside the record. Petitioner points to no facts that suggest a different balancing should have occurred." Additionally, citing State v. Odom, 113 N.J. Super. 186, 191 (App. Div. 1971), the judge noted that Rule 3:22-8 requires that a defendant seeking post-conviction relief set forth specific facts in the petition upon which relief is sought, and that defendant had failed to do so. In addition to the oral opinion issued immediately following oral argument, the court appended a written statement of reasons to the January 28, 2010 order denying defendant's petition, outlining the substantive deficiencies in defendant's petition. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PCR
PETITION WITHOUT AN EVIDENTIARY HEARING WHERE THE DEFENDANT
ESTABLISHED A [PRIMA FACIE] CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL
AND, THEREFORE, THE MATTER MUST BE REMANDED FOR A PRECIOSE*fn1
IF THE COURT DETERMINES THAT THE PCR [COURT] DID NOT ABUSE ITS DISCRETION BY DENYING THE PCR PETITION AS INSUFFICIENT UNDER [RULE] 3:22-8, THE COURT SHOULD, NONETHELESS, REMAND THIS MATTER FOR A DETERMINATION OF WHETHER PCR COUNSEL ...