On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
Defendant Anthony Kelly appeals from denial of his motion for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On April 19, 2003, defendant and another man drove to Paterson to buy illegal drugs. At about midnight, defendant got out of their car, a burgundy Buick with a white top, and he asked a pedestrian for change. He then struck the man and robbed him at gunpoint, taking his black leather jacket, an athletic jersey, and a gold chain. Defendant thought he could trade those items for drugs. Within minutes, the police had a description of the robbers and the car. Patrol officers in downtown Paterson saw and stopped the burgundy Buick. Defendant emerged from the passenger seat after attempting to use a black leather jacket to conceal a loaded handgun placed on the front seat. In the car, the police also found an athletic jersey and a gold chain with a distinctive emblem. They brought the victim to the scene, and he identified defendant as the robber who had wielded the gun minutes earlier, and he also identified the car and the items taken from him.
Defendant was indicted in December 2003 on the following charges: (count one) first-degree armed robbery, N.J.S.A. 2C:15-1a(1); (count two) third-degree theft, N.J.S.A. 2C:20-3a; (count three) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (count four) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (count five) fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; (count six) fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and (count seven) second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b.
On the eve of trial, defendant pleaded guilty pursuant to a plea agreement to count one, armed robbery, and count seven, possession of a firearm by a convicted person. In accordance with the plea agreement, the prosecution recommended sentences of twenty years imprisonment on the armed robbery charge and ten years imprisonment on the weapons charge, both with mandatory periods of parole ineligibility. The sentences were to run concurrently.
At the sentencing hearing on October 29, 2004, the court referenced defendant's three prior convictions on indictable charges, including a weapons charge and aggravated assault. None of defendant's prior convictions had resulted in terms of incarceration in State prison. The court stated that, this time, a substantial sentence of imprisonment was necessary because of defendant's current and past violent crimes, although not the full twenty years recommended by the State. The court sentenced defendant to an aggregate term of fifteen years in prison with eighty-five percent of the sentences to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant's direct appeal was argued on an excessive sentence calendar pursuant to Rule 2:9-11. By order dated March 29, 2007, we affirmed the sentence.
Defendant filed a pro se PCR petition in April 2008. Counsel was appointed to represent defendant and filed a brief in support of PCR, as well as medical records and a certification of defendant's mother to demonstrate that defendant had a history of psychiatric and substance abuse treatment, including in-patient hospitalizations. On March 30, 2010, the trial court heard argument and denied the PCR motion without holding an evidentiary hearing.
On appeal, defendant argues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...