On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Baxter and Nugent.
Defendant Amos Mitchell appeals from the January 6, 2010 order that denied his petition for post-conviction relief (PCR). He contends that his trial attorney was ineffective for failing to investigate and research adequately the charges against him, failing to aggressively pursue a pre-indictment plea, and permitting him to plead guilty to first-degree robbery knowing there was no factual basis to establish that offense. Having considered defendant's arguments in light of the record and applicable law, we agree with the trial court that defendant has failed to demonstrate he would have rejected the State's plea offer but for counsel's conduct. We therefore affirm.
The transcript of defendant's plea colloquy establishes that on January 5, 2006, defendant walked into a Hallmark store and, with the purpose of putting the cashier in fear of immediate bodily injury, stole money from the cash register. Although defendant denied having a knife or weapon in his possession, defendant admitted stating to the cashier, "This is a robbery, open the register and give me the money." When asked by the court whether his use of the word "robbery" would have reasonably led the cashier "to believe she was being threatened with a deadly weapon," defendant answered "yes." He also admitted that he said, "I don't want anyone to get hurt, this is a hold-up." Two days later, on January 7, 2006, while armed with a knife, defendant walked into a Bed, Bath and Beyond store and, with the intent of putting the two cashiers in fear of immediate bodily injury, stole money from the cash register.
An Ocean County grand jury charged defendant with first-degree robbery, N.J.S.A. 2C:15-1, with respect to the Hallmark store (count one); first-degree robbery, N.J.S.A. 2C:15-1, with respect to the Bed, Bath and Beyond store (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a (count five).
On June 1, 2006, defendant pled guilty to counts one, two and five. In exchange, the State recommended that defendant be sentenced on each robbery count to fifteen years imprisonment, subject to a term of eighty-five percent parole ineligibility and five years of parole supervision upon release, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and to a one-and-one-half-year term of imprisonment, subject to an eighty-five percent parole disqualifier, on the fourth-degree weapons count. The State also recommended that the sentences run concurrently, agreed to dismiss the two other weapons charges, and agreed to waive its right to seek an extended prison term for which defendant was eligible as a persistent offender, N.J.S.A. 2C:44-3. Finally, the State agreed that defendant could argue at sentencing for maximum prison terms less than the fifteen years recommended by the State on the first-degree robbery counts.
On July 21, 2006, consistent with defendant's guilty plea, the court sentenced him on counts one and two to concurrent fifteen-year terms of imprisonment subject to eighty-five percent parole ineligibility and five years of parole supervision upon release; and on count five to a concurrent prison term of eighteen months subject to an eighty-five percent period of parole ineligibility. The court also imposed appropriate fines and penalties.
Defendant appealed his sentence, challenging the factual basis for his plea on count one, and his appeal was heard on an excessive sentence calendar, R. 2:9-11. We reversed and vacated his conviction on count one, concluding there was an inadequate factual basis for his plea to first-degree robbery of the Hallmark store. State v. Mitchell, No. A-1657-06 (App. Div. December 20, 2007). On remand, defendant pled guilty to second-degree robbery on count one and the court sentenced him to a prison term of seven years subject to the provisions of NERA, the sentence to run concurrently to defendant's sentences on the second and fifth counts.
On February 3, 2009, defendant filed his PCR petition and on February 26, 2009, the court appointed counsel to represent him. Thereafter, defendant filed a supplemental brief in support of his petition. On January 6, 2010, the trial court*fn1 denied the petition. This appeal followed.
Defendant presents the following points for our consideration:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
A. Defendant Established That Trial Counsel's Conduct was Deficient.
B. Defendant Was Prejudiced By Trial Counsel's Deficient Performance.
THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING EVEN THOUGH DEFENDANT DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND IN ...