On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Sabatino and Ashrafi.
Defendant Lewis Palmer appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. He lists a series of alleged deficiencies in his trial attorney's performance but contends primarily that his attorney failed to present an effective alibi defense and failed to inform him of the heavy sentence he faced if convicted on charges including armed robbery and aggravated assault. We affirm denial of defendant's PCR petition.
Defendant and two co-defendants, Andrew Dennis and Abdus Samad Hamilton, were indicted for the robbery and shooting of an Atlantic City drug dealer named Christopher Tuten. At a joint trial in May 2001, the State presented evidence to prove that Dennis was a drug customer who believed Tuten had more than $40,000 hidden in his apartment. The three defendants forcibly entered the apartment at about 8:30 a.m. on August 14, 2000, and restrained two other persons who lived there. Only then did defendant Palmer realize that he and the two residents knew one another. The two residents were nevertheless threatened and confined in a bedroom.
When Tuten returned about one hour later that morning, the defendants beat him and threatened to shoot him if he did not reveal where he had hidden cash. Tuten denied he had cash, other than the few hundred dollars that defendants found on his person. Co-defendant Hamilton shot Tuten in each of his kneecaps in further effort to find hidden money. Ultimately, defendants were unsuccessful and fled.
Tuten did not know defendant and Hamilton, and those two had masked their faces during the robbery. Tuten could only identify Dennis. Defendant and Hamilton were identified through statements given to the police and identifications made by the two residents in the apartment. At the time of trial, however, both eyewitnesses recanted their statements and testified they could not identify the persons who committed the crimes. Their prior recorded statements and identifications were admitted in evidence at the trial.
The three defendants were found guilty on all fifteen counts of the indictment presented to the jury: first-degree armed robbery, N.J.S.A. 2C:15-1; second- through fourth-degree aggravated assaults, N.J.S.A. 2C:12-1b(1), (3), (4); second-degree burglary, N.J.S.A. 2C:18-2; third-degree criminal restraint, N.J.S.A. 2C:13-2; second- and third-degree firearms offenses, , N.J.S.A. 2C:39-4a, -5b; and various conspiracies to commit the charged offenses, N.J.S.A. 2C:5-2.
At defendant's sentencing in July 2001, the court merged counts and sentenced defendant as follows: for the first-degree convictions for armed robbery, twenty years in prison, with eighty-five percent of the term to be served before parole and a five-year term of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; for the convictions for second-degree aggravated assault in shooting Tuten, ten years in prison under NERA, to be served consecutively to the sentence for armed robbery; and for the convictions for second-degree burglary and third-degree criminal restraint, concurrent terms respectively of ten and five years in prison. Defendant's aggregate prison sentence was thirty years with twenty-five and a half years to be served before parole.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Palmer, No. A-422-01 (App. Div. June 29, 2004). The Supreme Court denied his petition for certification. State v. Palmer, 182 N.J. 428 (2005).
In May 2005, defendant filed a pro se PCR petition alleging ineffective assistance of counsel in violation of his Sixth Amendment and State constitutional rights. An attorney was appointed to represent defendant. On December 23, 2009, the judge who had presided over defendant's trial heard extensive argument of counsel and then denied the PCR petition in an oral decision.
On appeal, the brief filed by defendant's appellate attorney makes the following arguments:
I. THE PCR COURT ERRED IN FAILING TO VACATE DEFENDANT'S CONVICTION AND SENTENCE BASED ON DEFENDANT'S TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE.
II. THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURES TO MEET WITH THE DEFENDANT PRIOR TO TRIAL, INVESTIGATE AND GIVE NOTICE OF DEFENDANT'S ALIBI DEFENSE AND CONSULT WITH DEFENDANT REGARDING HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE AND THE OTHER ERRORS ALLEGED IN DEFENDANT'S PETITION.
Defendant has also filed a pro se supplemental brief in which he makes the ...