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State of New Jersey v. Michael Pennington

August 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL PENNINGTON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1530.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2012 --

Before Judges Graves and Yannotti.

Defendant Michael Pennington appeals from an order entered by the Law Division on October 15, 2010, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count one); and second-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count two). On December 19, 2007, defendant pled guilty to first-degree armed robbery, as charged in count one. The State agreed to dismiss the other count, as well as the two underlying warrants.

The plea agreement provided that the State would recommend a ten-year sentence, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement also provided that defendant reserved the right to ask the court to sentence him as a second-degree offender.

At the December 19, 2007 plea hearing, defendant admitted that, on December 2, 2006, he entered the Commerce Bank branch in Camden, jumped over the counter, and gestured as if he had a knife or other weapon that would put someone in fear. Defendant acknowledged he took cash from the bank and ran out the door.

Defendant was sentenced on February 1, 2008. The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court dismissed count two of the indictment and sentenced defendant to a ten-year term of incarceration, with a period of parole ineligibility, as prescribed by NERA. The court also imposed applicable penalties and assessments.

Defendant appealed from the judgment of conviction dated February 1, 2008, as corrected by an amended judgment filed on April 3, 2008. The appeal was heard on the court's Excessive Sentence Oral Argument Calendar. R. 2:9-11. We entered an order affirming the trial court's judgment. State v. Pennington, No. A-4947-07 (App. Div. March 3, 2009).

Defendant then filed a motion for clarification. We filed an order granting the motion. State v. Pennington, No. A-4947-07 (App. Div. April 2, 2009). The order stated that we considered all the issues raised on appeal to be lacking in merit and defendant had provided a sufficient factual basis for the plea. Ibid.

Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Pennington, 199 N.J. 543 (2009).

On November 9, 2008, defendant filed a pro se PCR petition in the Law Division. The PCR court assigned counsel to represent defendant, and counsel filed a brief in which he argued, among other things, that defendant had been denied the effective assistance of counsel because trial counsel failed to investigate and raise certain mitigating factors at the sentencing hearing. The PCR court considered the petition on October 15, 2010, and, after hearing the arguments of counsel, placed its decision on the record.

The court determined that defendant's claim was, in essence, a claim that his sentence was excessive, which was not a cognizable ground for PCR. The court also determined that defendant's petition was barred by Rule 3:22-5 because the claims were previously adjudicated in the excessive sentence appeal. The court additionally found no merit in defendant's claim that he had been denied the effective ...


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