On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Kennedy.
Defendant Edgar Pichardo appeals from the July 21, 2009 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. Tried to a jury in May 2005, defendant was convicted of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a; unlawful possession of a weapon, a rifle, in violation of N.J.S.A. 2C:39-5c(1); and receiving stolen property, in violation of N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2a. On September 30, 2005, after merging the weapons offense into the aggravated manslaughter charge, the trial judge sentenced defendant to a term of twenty-two years in prison, subject to an eighty-five percent period of parole ineligibility, on the aggravated manslaughter conviction. Defendant was also sentenced to four years imprisonment on the receiving stolen property charge, to run consecutive to the aggravated manslaughter sentence.
We affirmed defendant's conviction and sentence, State v. Pichardo, No. A-1603-05 (App. Div. March 10, 2008), and the Supreme Court denied defendant's petition for certification. State v. Pichardo, 195 N.J. 524 (2008). In June 2008, defendant filed a pro se PCR petition and counsel was assigned to represent him. After an evidentiary hearing, the motion judge denied the petition on July 21, 2009. This appeal followed.
In the brief filed by his counsel, defendant argues:
APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE THAT THE TRIAL COURT ERRED IN DENYING MR. PICHARDO'S THREE MOTIONS TO SUPPRESS AND TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO INVESTIGATE AND COMMUNICATE WITH HIS CLIENT
A. Motion to Suppress Identification - Appellate Counsel
B. Motion to Suppress Statement - Appellate Counsel
C. Motion to Suppress Evidence - Appellate Counsel
D. Investigate and Consult with Client -Trial Counsel
In a supplemental pro se brief, defendant further argues:
a. APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO RAISE THAT THE TRIAL JUDGE DOUBLE COUNTED AGGRAVATING FACTOR NUMBER 1 IN SENTENCING THE DEFENDANT ON COUNTS 1 AND 3 AND IMPROPERLY APPLIED MITIGATING FACTORS, TRIAL COUNSEL ...