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State v. Gilkes

Superior Court of New Jersey, Appellate Division

July 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JERMAINE GILKES, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-09-2964.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Messano and Lihotz.

PER CURIAM.

Defendant Jermaine Gilkes[1] appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. On April 28, 2006, defendant pled guilty to second- degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 and 15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of an unlawful weapon, an assault firearm, N.J.S.A. 2C:39-5f. Pursuant to the plea bargain, the State agreed to dismiss the remaining counts of the indictment and recommend an aggregate sentence of ten years imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to provide "truthful testimony" against his co-defendants and to re-affirm statements he previously provided to law enforcement.[2]

Prior to sentencing, defendant filed a pro se motion to withdraw his guilty pleas. The judge conducted a hearing at which, now represented by successor trial counsel, defendant testified; original trial counsel also testified. The judge denied the motion, finding there was "no basis in fact" to vacate the guilty pleas, and that defendant, who was an "articulate and educated individual, " entered his plea "freely and voluntarily" with the full advice of counsel.

On February 1, 2007, defendant was sentenced in accordance with the plea bargain. Defendant's appeal was limited to the excessiveness of his sentence. We affirmed. State v. Gilkes, A-4228-06 (App. Div. Apr. 29, 2008). Defendant's petition for certification was denied. State v. Gilkes, 196 N.J. 598 (2008).

On August 27, 2009, defendant filed a pro se petition for PCR. Defendant asserted that police conducted an illegal search of his apartment after coercing the consent of his "girlfriend, Renarta Shreeves, " and he was interrogated in violation of his Miranda[3] rights. Defendant also claimed trial counsel provided ineffective assistance, specifically that he: failed to provide defendant with pre-trial discovery, in particular, grand jury minutes and the photo array used by law enforcement for identification purposes; failed to properly investigate the State's case; and failed to file a motion to suppress evidence seized during the warrantless search. Defendant also asserted that police "videotaped" the search and, despite repeated requests, the State never produced the videotape. Lastly, defendant asserted that his sentence was illegal because it imposed "parole supervision provisions" in violation of the Federal and State constitutional guarantees against "double jeopardy."

PCR counsel was appointed and, at oral argument on February 18, 2011, he essentially reaffirmed the arguments made in his and defendant's pro se brief. After considering argument, the PCR judge, who was also the trial judge, denied the petition. He concluded that defendant failed to "establish[] any type of a prima facie showing that there [was] merit to his claim." The judge entered a conforming order on February 22, and this appeal ensued.

Before us, defendant raises the following points:

POINT I
DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS NOT BARRED BY RULE 3:22 AND HE WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS, PURSUANT TO RULE 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE TRIAL COURT DID NOT ADDRESS WHETHER THE DEFENDANT HAD MADE A COLORABLE ...

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