On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 99-03-0419, 99-02-0234 and 99-12-2282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Carchman and Nugent.
Following a jury trial, defendant Warren Miller was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of the previously charged offense of first-degree murder, N.J.S.A. 2C:11-3a(1)(2), as well as third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Following appropriate mergers, the trial judge sentenced defendant on April 14, 2000, to an aggregate term of life imprisonment with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility of sixty-three years, nine months. Defendant appealed; we affirmed but remanded for reconsideration of the period of parole ineligibility. Thereafter, defendant's period of parole ineligibility was reduced to twenty-five years, six months. The Supreme Court denied certification. State v. Miller, 174 N.J. 42 (2002).
On his direct appeal, defendant raised the following issues:
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO SEQUESTER THE JURY AFTER NEWSPAPER ARTICLES EMERGED IN THE ATLANTIC CITY PRESS, PARTICULARLY CONCERNING THE DEFENDANT'S PRIOR HOMICIDE CHARGE.
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE STATE TO INTRODUCE INADMISSIBLE HEARSAY OF ITS OWN WITNESS' ALLEGED PRIOR INCONSISTENT STATEMENT.
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ALLOWED INTO EVIDENCE AUTOPSY PHOTOGRAPHS WHICH HAD NO PROBATIVE VALUE, AND WAS MERELY MEANT TO INFLAME THE PASSIONS OF THE JURORS.
DEFENDANT'S CONVICTION FOR TERRORISTIC THREATS SHOULD BE VACATED BECAUSE THE PLEA TO THAT CHARGE LACKED A SUFFICIENT FACTUAL BASIS.
THE DEFENDANT'S PLEA OF GUILTY TO THE TERRORISTIC THREATS AND POSSESSION OF COCAINE INDICTMENTS SHOULD BE VACATED BECAUSE THE DETERMINATION ON WHETHER THE PLEA WAS ENTERED VOLUNTARILY AND KNOWINGLY WAS INSUFFICIENT.
THE DEFENDANT'S SENTENCE WAS EXCESSIVE IN THAT THE COURT FAILED TO ARTICULATE THE AGGRAVATING AND MITIGATING FACTORS.
On September 11, 2002, defendant filed his first petition for post-conviction relief (first PCR). In his first PCR, defendant raised these issues:
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF BOTH THE UNITED STATES CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION.
PETITION WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.
Defendant's first PCR was denied, and defendant appealed.
In the appeal from the first PCR, defendant claimed:
THE LOWER COURT SHOULD HAVE HELD A FULL EVIDENTIARY HEARING ON THE DEFENDANT'S CLAIM OF THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE APPELLATE COUNSEL FAILED TO COMMUNICATE WITH THE DEFENDANT, WHICH RESULTED IN A DEFICIENT APPEAL AND THE LACK OF A PRO SE APPEAL BRIEF.
THE DEFENDANT'S POST CONVICTION ATTORNEY DENIED THE DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FASHION EFFECTIVE ARGUMENTS, FAILING TO AMEND THE DEFENDANT'S AFFIDAVIT AND BY DISPLAYING LITTLE FAMILIARITY ...