On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-08-1684 and 05-06-1284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Jerome Holley appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
Defendant pleaded guilty on charges from two separate indictments. Indictment No. 04-08-1684 contained seven counts, including first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and other assault and weapons charges. The indictment accused defendant of shooting Jermaine Carmichael in the back and arm in the course of an attempted robbery on June 21, 2004. Indictment No. 05-06-1284 contained two counts, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7. Those charges arose from an April 2, 2005 arrest of defendant, at which time police found a handgun in his possession.
As trial on the first indictment was about to begin on October 25, 2005, defendant accepted a combined plea offer from the prosecution for concurrent sentences on charges from both indictments. He pleaded guilty to second-degree aggravated assault from the first indictment and to second-degree possession of a firearm by a convicted person from the second indictment. Defendant was sentenced on February 3, 2006, to concurrent terms of ten years imprisonment on each charge, with eighty-five percent of the sentences to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we heard argument on a sentencing calendar pursuant to Rule 2:9-11, and by order dated March 3, 2008, we remanded to the trial court for resentencing. On April 25, 2008, the trial court resentenced defendant to the same ten year NERA sentence on the aggravated assault charge and to a concurrent sentence of seven years imprisonment on the firearms charge with five years of parole ineligibility.
Defendant filed a petition for PCR on October 14, 2008. The judge who had taken defendant's guilty pleas and sentenced him both times considered the written PCR submissions and heard argument of counsel. By oral decision on July 17, 2009, the judge denied the petition without holding an evidentiary hearing.
On appeal, defendant does not challenge his guilty plea and sentence on the second indictment charging the weapons offense. As to the aggravated assault charge of the first indictment, he argues ineffective assistance of counsel prior to his guilty plea on two related grounds: that his attorney failed to conduct an adequate investigation to obtain exculpatory testimony from the victim, Carmichael, and that he failed to make a pretrial motion challenging identification of defendant as the person who shot Carmichael. Defendant's brief on appeal summarizes his arguments under the following point headings:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO ...