On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 28, 2011 - Decided:
Before Judges Axelrad and Sapp-Peterson.
Following denial of his motion to suppress statements made to detectives, defendant Joao Spencer Oliveira pled guilty to first- degree murder, N.J.S.A. 2C:11-3. Defendant preserved the Miranda*fn1 issue for appeal.
On May l, 2008, Judge Moynihan sentenced defendant in accordance with the negotiated plea agreement, treating the murder conviction as though it were a conviction for aggravated manslaughter, N.J.S.A. 2C:11-4a. The judge also dismissed the remaining counts of the indictment consisting of two weapons charges and one theft charge. He imposed a twenty-four-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and appropriate fines and penalties. Defendant appeals from his conviction and sentence.
Defendant asserts the following arguments on appeal through counsel:
THE COURT ERRED IN FINDING THE DEFENDANT'S STATEMENTS TO THE POLICE WERE ADMISSIBLE AS DEFENDANT DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHT AGAINST SELF-INCRIMINATION.
THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.
Defendant asserts the following arguments on appeal in a pro se supplemental brief:
[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS COUNSEL SHEILA J. TOBIN FAILED TO DO ANY KIND OF INVESTIGATION IN [HIS] CASE OR ATTEMPT TO DEVELOP AN ADEQUATE TRIAL STRATEGY BEFORE CONVINCING HIM TO PLEAD GUILTY IN VIOLATION OF HIS FIFTH AND SIXTH AMENDMENT RIGHTS.
THE TRIAL COURT/STATE'S PROSECUTOR B. HOLMES AND DEFENSE COUNSEL S. TOBIN BREACHED THE PLEA BARGAIN AGREEMENT BETWEEN [DEFENDANT] AND THE STATE; PROSECUTORIAL MISCONDUCT AND; INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL/PLEA HEARING.
THE TRIAL COURT'S FAILURE TO CHARGE PASSION/PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE DENIED [DEFENDANT] A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10. AND INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL/PLEA.
THE TRIAL JUDGE SCOTT J. MOYNIHAN'S FAILURE TO HONOR HIS DUTY AND MORAL OBLIGATION TO ADDRESS [DEFENDANT] WITH HIS "FACTUAL BASIS" PERSONALLY IS IN VIOLATION OF [DEFENDANT'S] STATE AND FEDERAL CONSTITUTIONAL RIGHTS OF DUE PROCESS CLAUSE; THE TRIAL JUDGE, PROSECUTOR, & DEFENSE COUNSEL "COERCED" [DEFENDANT] INTO PLEADING GUILTY TO MURDER/AGGRAVATED MANSLAUGHTER; PROSECUTORIAL MISCONDUCT AND; ...