NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-02-0446.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant appeals from the denial of his petition for post-conviction (PCR) relief. We affirm.
On February 28, 2002, defendant was indicted on counts of murder, N.J.S.A. 2C:11-3(a)(1)(2), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), arising from the December 31, 2001, killing of Helen Croudy. At the conclusion of a Mirandahearing on May 27, 2003, the court denied defendant's motion to suppress his confession, and defendant entered an open plea to the charges.
After merging the weapons charges, the court sentenced defendant on June 20, 2003, to fifty years on the murder charge subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his sentence, and we affirmed. State v. Harper, No. A-6200-02 (App. Div. Jan. 8, 2004).
Almost seven years later,  defendant filed a pro se petition for PCR, claiming ineffective assistance of counsel because his trial attorney: incorrectly informed him that he had no right to appeal, and therefore no appeals were ever filed; failed to adequately investigate the circumstances surrounding the case; failed to advise him of his ability to negotiate the plea offered by the State; failed to explore a passion/provocation defense; failed to inform him of the consequences of an open plea, with defendant incorrectly assuming he would be sentenced to no more than thirty years; and failed to explain that his sentence would be subject to a period of parole ineligibility under NERA. Defendant was subsequently assigned PCR counsel, and argument was heard on March 31, 2011. On May 6, 2011, Judge Charles Middlesworth, Jr. denied the petition in a cogent written opinion, finding it was time-barred and lacked merit.
In the present appeal, defendant contends:
POINT I: THE POST-CONVICTION RELIEF COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING BECAUSE DEFENDANT CLEARLY ESTABLISHED A PRIMA FACIE CASE THAT HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant Established A Prima Facie [Case] Of Ineffective Assistance Because Counsel Permitted Defendant To Plead To An Open ...