NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-07-2272.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Yannotti.
Defendant Anthony Major appeals from an order entered by the Law Division on November 8, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Indictment No. 06-07-2272 with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count four). On October 10, 2007, defendant pled guilty to all of the charges. The State agreed to recommend a custodial term not to exceed seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant was sentenced on November 26, 2007. The trial court sentenced defendant on count one to a term in the second-degree range, pursuant to N.J.S.A. 2C:44-1(f)(2), to a seven-year term of incarceration subject to NERA. The court merged count two with count three. On count three, the court sentenced defendant to a concurrent five-year term, and on count four the court imposed a concurrent, eighteen-month term.
On February 8, 2008, defendant filed a motion for reduction of his sentence. The trial court denied the motion, and defendant appealed, challenging the sentence on the ground that the court failed to advise him of the NERA consequences of his plea. With the State's agreement, we remanded the matter to the trial court for a hearing. State v. Major, No. A-3786-07 (App. Div. Oct. 21, 2009).
Defendant re-negotiated his plea and on February 5, 2010, pled guilty to count one, as amended to charge second-degree robbery. The State agreed to recommend a custodial term of up to six years, subject to NERA, and to dismiss all remaining counts of the indictment. The court then sentenced defendant to a six-year term of incarceration, subject to NERA.
Thereafter, defendant filed a PCR petition, alleging that he was denied the effective assistance of counsel. He claimed that his attorney failed to argue that he should not have been subject to NERA because his offense was not robbery but rather theft from a person. Defendant also argued that he presented a prima facie case of ineffective assistance of counsel and should be afforded an evidentiary hearing on those claims. In addition, defendant argued that his petition was not procedurally barred.
The PCR court considered the petition on November 8, 2010, and placed its decision on the record that date. The court agreed that defendant's PCR petition was not procedurally barred and concluded that an evidentiary hearing was not required because defendant did not present a prima facie case of ineffective assistance of counsel. The court found that defense counsel was not deficient ...