On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-11-2186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Simonelli and Hayden.
Defendant Rasuan Thompson appeals the August 17, 2009 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that on October 20, 2004, defendant entered a guilty plea to one count of first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement under which the State agreed to recommend a maximum fourteen-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c. The state also agreed to dismiss the remaining counts of the indictment, which included eight additional counts of armed robbery, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b, fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and third-degree hindering apprehension, N.J.S.A. 2C:29-3. The indictment was based on charges that defendant and his co-defendant used a handgun to rob nine people at a card game. Thereafter, defendant fled by auto and on foot before the police apprehended him.
Judge Conte sentenced defendant to fourteen years in prison with an eighty-five percent period of parole ineligibility pursuant to NERA with a five-year period of parole supervision. Defendant appealed, challenging several trial court rulings. He also argued that "the sentence imposed by the court was improper and excessive because the court applied incorrect aggravating factors and ignored relevant mitigating factors, while failing to provide an adequate explanation for the factors found." We affirmed defendant's conviction and sentence. State v. Thompson, No. A-2619-04 (App. Div. October 1, 2007). The New Jersey Supreme Court denied defendant's petition for certification. State v. Thompson, 194 N.J. 446 (2008).
Defendant subsequently filed a PCR petition, which was heard before Judge Lipton on August 3, 2009. He raised the following contentions:
POINT I: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT III: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT V: THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
Judge Lipton denied defendant's petition, finding that defendant failed to present a prima facie case that he was denied effective assistance of counsel at either the trial or appellate level, or that his sentence was illegal. The judge ruled that Rule 3:22-5, which bars consideration of claims previously adjudicated on the merits, barred defendant's claims relating to his sentence. The judge noted that the claim had been raised on direct appeal and found to lack merit, and defendant failed to show fundamental injustice would result if the court did not consider the claim. She also ...