On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2012
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Keon Milledge appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In 2004, a jury found defendant guilty of committing a series of horrific crimes against two teenagers who were parked in a car in an isolated area in Cumberland County. In our decision on direct appeal affirming the jury's verdict, State v. Milledge, 386 N.J. Super. 233, 237-39 (App. Div.), certif. denied, 188 N.J. 355 (2006), we recounted the brutal facts shown by the evidence at defendant's trial, which we now summarize briefly.
Defendant, then seventeen years old, and three other young men set out on the night of September 19, 2002, to "rob some Mexicans." At approximately 9:00 p.m., they came upon a teenage boy and girl parked near a boat ramp at Elmer Lake in Bridgeton. Defendant and the others pulled the teenagers out of their car and assaulted them repeatedly and brutally. They robbed their money and belongings. All four young men sexually assaulted the girl, punching her and threatening to kill her to force compliance with their demands. They dragged the girl into a wooded area and continued the sexual assaults over a period of about half an hour. At the same time, they repeatedly punched the boy, struck him with a baseball bat, and kicked and stomped on him. They taunted and threatened the victims and shouted words of encouragement to one another to continue the savage assaults.
After they finished and left, the victims managed to get themselves to a hospital and were treated for serious injuries. The police quickly developed suspects because the victims had recognized some of the assailants from school. Defendant and his mother were contacted and came to the police station. They were advised of their rights, which they waived in writing. Defendant's mother instructed him to tell the police the truth and decided she would not stay in the interview room.
During the interview, defendant spoke freely, at first denying involvement in the assaults and claiming that he had a list of people that would provide an alibi. When asked to provide the list, he rushed at and shoved a detective. He was restrained, and the interview continued. His mother briefly returned and again urged him to tell the truth. She elected a second time not to remain with her son during the interview. Defendant then made statements identifying the other perpetrators and admitting he was present and participated in some aspects of the assault, including forced oral sex. He denied he had used a baseball bat or that he had personally assaulted the boy.
After defendant was charged, he appeared with his attorney for a hearing in the Family Part. He voluntarily waived further juvenile proceedings and agreed to transfer of the charges to adult criminal court. The jury at his trial found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree robbery, N.J.S.A. 2C:15-1a(1); disorderly persons simple assault, N.J.S.A. 2C:12-1a; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; and fourth-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a). The jury acquitted defendant of several other charges.
The trial court sentenced defendant to an aggregate term of thirty-four years imprisonment with eighty-five percent of the term without eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction on direct appeal, Milledge, supra, 386 N.J. Super. at 237, but remanded for resentencing on counts that should have merged at sentencing. The Supreme Court denied defendant's petition for certification. Milledge, supra, 188 N.J. 355. On remand, the trial court re-imposed the aggregate thirty-four year NERA sentence.
Defendant then filed a pro se PCR petition on December 24, 2007, alleging ineffective assistance of counsel. An attorney was appointed to represent him and filed a brief and additional items supporting defendant's petition. The trial court heard oral argument on June 11, 2010, and denied defendant's petition without conducting an evidentiary hearing.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF ...