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State of New Jersey v. Garnett Lee Briscoe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARNETT LEE BRISCOE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4323.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2012 -

Before Judges Fuentes and Koblitz.

Defendant Garnett Lee Briscoe appeals from the denial of his second post conviction relief (PCR) petition. We affirm.

On January 24, 2000, defendant pled guilty, pursuant to a negotiated agreement with the State, to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The parties agreed that the State would seek the maximum sentence, that being a term of thirty years on the aggravated manslaughter charge, and a consecutive term of ten years on the second degree aggravated assault charge. Both terms of imprisonment would be subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant thus would be exposed to an aggregate sentence of forty years, with thirty-four years without parole.

On March 17, 2000, the court sentenced defendant consistent with the plea agreement. Defendant filed a pro se notice of appeal on March 6, 2002, which was heard by this court on May 24, 2004, pursuant to the summary process available under Rule 2:9-11. We affirmed defendant's conviction and sentence by order dated May 25, 2004.

Defendant filed his first PCR petition on November 24, 2004, claiming ineffective assistance of trial counsel. The trial court denied the petition in an order dated June 23, 2006. Defendant then appealed, claiming ineffective assistance of both trial and PCR counsel. We affirmed the PCR court's denial in an unpublished per curiam opinion. State v. Briscoe, No. A-0119-06 (App. Div. Nov. 8, 2007). The Supreme Court denied defendant's petition for certification. State v. Briscoe, 194 N.J. 272 (2008).

Undaunted, defendant filed a petition for habeas corpus with the United States District Court for the District of New Jersey, which was denied by order dated April 23, 2009. The Third Circuit Court of Appeals affirmed the order of the District Court on November 13, 2009. On April 16, 2010, defendant filed pro se motions with the Superior Court captioned: "Notice of Motion to Open His Plea Dated January 24, 2000," and "Notice of Motion to Correct an Illegal Sentence." Defendant requested the court to refer the matter to the Office of the Public Defender for assignment of counsel.

By letter dated August 6, 2010, Judge Michele M. Fox confirmed to defendant the receipt of his motions, and informed him that the court would treat them as a petition for PCR, because defendant's alleged basis for relief was ineffective assistance of counsel. In this same correspondence, Judge Fox informed defendant that she was denying the petition pursuant to Rule 3:22-5 because the "issue ha[d] already been adjudicated on direct appeal . . . ." Judge Fox also denied defendant's request for assignment of counsel because defendant had not shown "good cause" under Rule 3:22-6(b).

Defendant now appeals from this order, raising the following argument.

POINT ONE

THE TRIAL COURT ERRED IN DENYING APPELLANT A HEARING AS TO WHETHER HIS PLEA WAS VALID AND WHETHER COUNSEL WAS INEFFECTIVE DURING PLEA NEGOTIATIONS AS SUCH AN EVIDENTIARY HEARING SHOULD BE AFFORDED IN VIOLATION OF APPELLANT'S SIXTH[,] FIFTH AND FOURTEENTH AMENDMENTS.

Defendant's argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fox.

Affirmed.

20120621

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