May 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE PHILLIPS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 89-10-4485 and 90-08-3843.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012 --
Before Judges Grall and Skillman.
In 1989, defendant was charged under two separate indictments with various drug offenses. Pursuant to a plea bargain, defendant pled guilty to charges of possession of heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(3), and possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(12), under one indictment, and a charge of distribution of cocaine, in violation of N.J.S.A. 2C:35-5(b)(13), under the second indictment. On January 10, 1992, the trial court sentenced defendant to an aggregate term of three years imprisonment for these offenses. These sentences were made concurrent to a sentence defendant was already serving in New York State. Defendant did not file a direct appeal from his convictions. More than fifteen years later, on October 27, 2007, defendant filed a petition for post-conviction relief challenging his 1992 convictions based on alleged ineffective assistance of his trial counsel, apparently because he faced sentencing in federal court as a career criminal based upon those convictions. The trial court, by a written decision and memorializing order entered on August 21, 2009, concluded that defendant's petition was time-barred and in any event failed to establish a prima facie case of ineffective assistance of trial counsel.
On appeal, defendant presents the following arguments:
BECAUSE THE TRIAL ATTORNEY FAILED TO PRESERVE THE RIGHT TO APPEAL AFTER THE MOTION TO DISMISS THE INDICTMENT WAS DENIED, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS (Not Raised Below).
BECAUSE THE TRIAL ATTORNEY FAILED TO PURSUE THE MOTION TO DISMISS THE INDICTMENTS BASED UPON THE INTERSTATE DETAINER ACT, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
BECAUSE THE RECORD BELOW IS SPARSE AND THIS CASE INVOLVES ISSUES THAT LIE OUTSIDE OF ANY RECORD THAT MAY EXIST, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE CONSIDERED ON THE MERITS AS WITHIN TIME.
IN THE ALTERNATIVE, THE DEFENDANT SHOULD BE GRANTED LEAVE TO SUPPLEMENT HIS PRO SE PETITION (Partially Raised Below).
REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS AND INEFFECTIVENESS OF COUNSEL.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's August 21, 2009 written decision. Defendant's arguments do not warrant any additional discussion. R. 2:11- 3(e)(2).
© 1992-2012 VersusLaw Inc.