NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-07-1104.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Messano and Lihotz.
Defendant Timothy Heard appeals from the denial of his petitions for post-conviction relief (PCR) without an evidentiary hearing. We set forth the substantial prior procedural history by reference to our earlier opinions:
A Middlesex County Grand Jury returned a twenty-five count indictment charging defendant, and co-defendants, Jalonn Lassiter and Kyle Parker-Hall, with criminal offenses in the burglary of [a residence on] Central Avenue, New Brunswick, and in the armed robberies, aggravated sexual assaults and kidnapping of the victims who resided [on] Stone Street, New Brunswick, which occurred on March 8, 2004. After a jury trial, defendant was found guilty of third-degree burglary . . ., N.J.S.A. 2C:18-2 (count six), which is a lesser offense of the original charge in the indictment as the jury could not agree whether the offense was committed while armed; third-degree theft of property in excess of $ 500, . . ., N.J.S.A. 2C:20-3 (count seven); second-degree conspiracy to commit armed-burglary, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:18-2(a) (count one); and second-degree burglary [at] Stone Street, N.J.S.A. 2C:18-2 (count eight). Defendant was acquitted of second-degree possession of a weapon (handgun), N.J.S.A. 2C:39-4a (count five) and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count seventeen).
No verdict was reached on the charges of third-degree possession of the weapon (box cutter) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and the five counts of first-degree robbery, N.J.S.A. 2C:15-1, (counts nine through thirteen).
On March 11, 2005, defendant's motion for a new trial was denied. After merger of count one, defendant was sentenced on count eight to a ten-year prison term with an eighty-five-percent period of parole ineligibility under the "No Early Release Act, " N.J.S.A. 2C:43-7.2; and on counts six and seven, to four-year prison terms to be served concurrently with each other but consecutively with the term imposed on count eight. This resulted in an aggregate prison sentence of fourteen years with an eight and one-half year period of parole ineligibility.
[State v. Timothy Heard, No. A-5401-04 (App. Div. Oct. 3, 2007) (Heard I) (slip op. at 1-3).]
We affirmed defendant's convictions, but remanded the matter for resentencing in light of the decision in State v. Natale, 184 N.J. 458 (2005). Id. at 7. Defendant's petition for certification was denied. State v. Heard, 195 N.J. 522 (2008).
"While his appeal was pending, in June 2005, defendant was retried on those charges previously resulting in a mistrial. Defendant was found guilty on all counts, i.e., third-degree possession of the box cutter for an unlawful purpose, and five counts of armed robbery in the first-degree." State v. Timothy Heard, No. 6520-06 (App. Div. Apr. 30, 2009) (Heard II) (slip op. at 3-4). "With respect to counts nine through thirteen, five counts of robbery in the first-degree, the judge sentenced defendant to a term of fifteen years with an 85% NERA parole disqualifier on each count. The judge ran the sentence imposed on count eleven, the first-degree robbery of M.L., consecutively to the other four robbery sentences, all of which he ran concurrently to each other. The judge merged count three, the weapons offense, into the robbery counts." Id. at 29-30.
We affirmed defendant's conviction and sentence, remanding only for amendment of the judgment of conviction to vacate a financial penalty; we preserved defendant's ability to raise claims of ineffective assistance of trial counsel. Id. at 34. Defendant's petition for certification was denied. State v. Heard, 200 N.J. 209 (2009).
In August and September 2009, defendant filed two pro se petitions for PCR, respectively challenging the convictions from the first and second trials. As to Heard I, defendant raised claims of legal error by the trial judge, as well as allegations that trial and appellate counsel provided ineffective assistance. Specifically, among other things, defendant asserted that trial counsel provided ineffective assistance by failing to argue for dismissal of count eleven, the robbery of M.L. and to call Parker-Hall as a witness. Defendant also asserted that appellate counsel provided ineffective assistance by failing to raise on appeal legal error regarding count eleven and trial counsel's deficiency in this regard.
As to Heard II, defendant raised claims of legal error by the judge in the second trial, and specific claims of ineffective assistance of trial counsel, including failure to: properly cross-examine M.L.; call Parker-Hall as a witness; and object to summation comments by the prosecutor. ...