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State of New Jersey v. Michael Nelson

March 6, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL NELSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-09-0952.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2012 -

Before Judges Harris and Koblitz.

Defendant Michael Nelson appeals from an August 30, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

Following a jury trial, Nelson was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a). After merger, the trial court imposed an extended term sentence of fifty years with a parole disqualifier of twenty-five years. On direct appeal, we affirmed the convictions, but vacated the sentence and ordered re-sentencing. State v. Nelson, No. A-1729-03 (App. Div. Aug. 12, 2005). The Supreme Court denied certification. State v. Nelson, 185 N.J. 392 (2005).

On July 13, 2007, pursuant to our mandate, Nelson was re-sentenced to a prison term of twenty years with a minimum term of seventeen years. We affirmed the sentence as part of an excessive sentence calendar pursuant to Rule 2:9-11. State v. Nelson, No. A-3819-07 (App. Div. May 28, 2009).

In January 2007, Nelson filed his application for PCR. A non-evidentiary hearing was conducted by Judge Pedro J. Jimenez, Jr. on July 2, 2010. Judge Jimenez reserved decision and later issued a written opinion denying PCR, concluding that Nelson's application did not "establish[] a prima facie case of ineffective assistance of his pre-trial, trial, or appellate counsel." This appeal followed.

B.

On April 30, 2000, the China Moon Chinese restaurant in Trenton was the site of an armed robbery. While being held at gunpoint, the owner of the restaurant handed over approximately $300 to a masked man whose voice she recognized as a frequent customer.

Police officers responded to the scene and interviewed the owner. A physical description of the individual with the gun was obtained and instantly broadcast to police officers in the field. Nelson was observed a few blocks away from the China Moon, and a chase ensued. With the assistance of a canine, Nelson was soon discovered lying on a deck in someone's backyard. When approached by a police officer with the dog, Nelson blurted out, "I give up, don't let the dog bite me," and "you got me, you got me." Lastly, Nelson was reported as saying, "you got me, I know I'm going to go to state prison for this." Less than thirty minutes had elapsed from when the police obtained a description of the robber to when Nelson was arrested.

After helping Nelson to his feet, the arresting officer observed and recovered $299 in cash that had been underneath Nelson's prone body. After receiving Miranda*fn1 warnings, Nelson offered to take the police to where he had discarded the gun. Before he could do that, ...


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