On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-03-0431 and 03-10-1842.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2012
Before Judges Koblitz and Accurso.
Defendant Marcus Cassady appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial court properly concluded that the evidence was inadequate to sustain defendant's burden, we affirm.
Defendant's PCR petition encompassed separate convictions on two unrelated offenses. The first arose out of his possession of a stolen car. Defendant was sentenced, in accordance with a plea agreement, on one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7, to time served, two years probation, and ordered to pay restitution of $3301.69. The additional convictions arose out of a robbery of Cape Savings Bank in Atlantic City and subsequent attempt to steal a car at a local dealership. Defendant was found guilty by a jury of two counts of second-degree robbery, N.J.S.A. 2C:15-1a, and sentenced to consecutive terms of ten years, each with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant did not file a direct appeal of his conviction for receiving stolen property. On appeal of his robbery convictions, we reversed one of the convictions and remanded for resentencing on the other, with one member of the panel dissenting on the conviction. State v. Cassady, 396 N.J. Super. 392, 402 (App. Div. 2007), rev'd 198 N.J. 165, 174 (2009). The Supreme Court, with three justices dissenting, reinstated defendant's convictions and sentence. Cassady, supra, 198 N.J. at 184.
Defendant filed a petition for post-conviction relief based primarily on claims of ineffective assistance of counsel. The matter was heard by Judge Donio, who had presided over defendant's robbery trial and imposed sentence. After hearing argument, Judge Donio denied the petition on the record.
On this appeal defendant argues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Was Ineffective Since He Failed to Pursue a Reasonable Trial Strategy.
B. Trial Counsel Was Ineffective Since He Failed to Advise Defendant that He Would be Subject to Probation as Part of His Plea Agreement on Ind. No. 03-10-1842.
C. Trial Counsel Was Ineffective Since He Failed to Advise Defendant of the Applicability of NERA With Respect to Ind. No. ...