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State of New Jersey v. Roger Emmons

April 10, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGER EMMONS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-05-0628.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Yannotti and Guadagno.

Defendant Roger Emmons appeals from an order entered by the Law Division on February 4, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Indictment No. 00-05-0628 with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), third-degree aggravated assault; N.J.S.A. 2C:12-1(b)(2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). He also was charged under Indictment No. 04-02-328 with bail jumping, N.J.S.A. 2C:29-7.

Defendant was tried before a jury on the charges under Indictment No. 00-05-0628. At the trial, evidence was presented, which established that on March 7, 1998, David Agnone (Agnone) was in his home in Bayville, speaking on the telephone with his sister Laurie Passenti (Passenti), when the door bell rang.

Agnone put the phone down, opened the door and saw a man who he did not recognize but who was later identified as defendant. He observed a small black truck parked outside. Defendant entered the house and said, "You are in big trouble." He began to swing a four and one-half inch black knife at Agnone. He punched Agnone and then stabbed him in and around the head. Agnone screamed out, telling his sister to call "911" and their father.

A neighbor, Michael O'Neill (O'Neill), reported that, about the time of the attack, he heard a vehicle's tires screech on the street. He went out to his porch and observed a black Ford Ranger parked outside, with someone in the passenger seat. O'Neill also observed a black sedan parked on the street. O'Neill testified that he saw a man walk quickly down Agnone's driveway and enter the Ford Ranger.

Shannon Blanchard (Blanchard) testified that she was living with defendant on March 7, 1998. She said that she drove with defendant in a black Ford Ranger. Defendant told her to follow a black Jetta. They drove to Bayville. The persons in the Jetta pointed to a house, and defendant told her to stop. Defendant got out of the Ranger, approached the house and knocked on the door.

Blanchard saw defendant enter the house. A short time later, defendant exited at a quick pace, entered the Ranger and told Blanchard to drive. Defendant was in possession of a black knife. He told Blanchard he had been in a fight and he used the knife. She noticed blood spots on defendant's pants and shirt. Defendant threw the knife out the window of the truck.

On March 18, 2004, the jury found defendant guilty on all counts. On April 19, 2004, defendant pled guilty to the bail jumping charge in Indictment No. 04-02-328.

Defendant was sentenced on May 14, 2004. On Indictment No. 00-05-0628, the court merged counts two and four with count one for sentencing purposes and imposed ten years of incarceration on count one, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a concurrent eighteen months of incarceration on count three. In addition, on Indictment No. 04-02-0328, the court imposed a four-year term, concurrent to the sentences imposed on Indictment No. 00-05-0628.

II.

Defendant appealed and raised the following arguments:

POINT I. THE TRIAL COURT ERRED IN PERMITTING THE DEFENDANT'S 1998 AND 1989 CONVICTIONS FROM THE STATE OF OHIO INTO EVIDENCE TO IMPEACH THE DEFENDANT'S CREDIBILITY.

POINT II. THE PROSECUTOR'S EXCESSES IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (Not raised below). POINT III. THE DEFENDANT'S CONVICTION FOR BAIL JUMPING MUST BE VACATED BECAUSE THE DEFENDANT DID NOT PROVIDE A FACTUAL BASIS FOR HIS GUILTY PLEA (Not raised below). POINT IV. THE IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW (Not raised below).

POINT V. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We affirmed defendant's convictions and the sentences imposed on Indictment No. 00-05-0628, but reversed the conviction and sentence on the bail jumping charge. State v. Emmons, No. A-0706-04 (App. Div. Dec. 27, 2005) (slip op. at 16-17). Defendant thereafter filed a petition for certification with the Supreme Court. The Court granted defendant's petition, vacated the sentences imposed on Indictment No. 00-05-0628 and remanded the matter for re-sentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Emmons, 186 N.J. 601 (2006). On remand, the trial court imposed the same sentences.

On March 26, 2007, defendant filed a pro se petition for PCR, in which he alleged he had been denied a fair trial. He also alleged that he had been denied the effective assistance of trial and appellate counsel. The court appointed PCR counsel, who filed a brief in support of the petition.

The PCR court considered the petition on December 5, 2008, and on February 4, 2009, entered its decision on the record, denying PCR. The court entered an order dated February 4, 2009, memorializing its decision. This appeal followed.

Defendant raises the following arguments for our consideration.

POINT I:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY

HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELEIF.

B. THE TRIAL COURT ERRED BY RULING IT WOULD NOT CONSIDER AN UNDATED, UNSIGNED AND UNCERTIFIED STATEMENT OF TRIAL COUNSEL SUBMITTED BY POST CONVICTION RELIEF COUNSEL IN ...


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