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State v. Bartee

Superior Court of New Jersey, Appellate Division

November 8, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MARK BARTEE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2013.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-3597.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

Before Judges Alvarez and Carroll.

PER CURIAM.

Defendant Mark Bartee appeals from an August 26, 2011 Law Division order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. We affirm.

On February 27, 2006, immediately before his trial was set to begin, defendant pled guilty to first-degree carjacking, N.J.S.A. 2C:15-2 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four), and second-degree eluding, N.J.S.A. 2C:29-2b (count five). In return, the State agreed to dismiss counts three and six of the indictment, and recommend a prison sentence not to exceed twelve years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant was sentenced on April 24, 2006, to an aggregate twelve-year prison sentence, subject to NERA, followed by an aggregate five-year period of parole supervision. Defendant appealed his sentence, and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. We declined to disturb the length of defendant's sentence, but remanded for a restitution hearing, and to consider merger of the assault, weapons, and carjacking charges. State v. Bartee, No. A-3824-06 (App. Div. July 30, 2008). It is unclear from the record whether this remand hearing took place.

Defendant then filed for PCR in August 2009. Counsel was appointed, and filed an amended PCR petition in August 2010. In his amended petition, defendant claimed that trial counsel was ineffective because he failed to (1) meet with defendant on a regular basis to discuss his rights, and trial strategy; (2) fully familiarize himself with the facts of the case; (3) interview key potential witnesses, including co-defendant Titiana Gordon who, he claimed, was prepared to exonerate him; and (4) properly counsel him about the consequences of his plea.

On August 26, 2011, Judge Robert H. Gardner heard argument from counsel, and then denied defendant's petition, without an evidentiary hearing. Judge Gardner rejected defendant's contention that he was not properly advised by counsel as to the consequences of his plea. The judge pointed out that the plea colloquy was "very thorough and complete, " and he "[did not] find in any way that the defendant did not understand what he was doing at the time he went through the plea colloquy."

Judge Gardner also found no evidence in the record to suggest that trial counsel was unfamiliar with the file, or that the pre-trial identification of defendant by the victim was improper. The judge noted that the recent decision in State v. Henderson, 208 N.J. 208 (2011), cited by PCR counsel, was unavailing to defendant as it did not apply retroactively.[1] With respect to trial counsel's determination not to call the co- defendant, Gordon, as a witness at trial, the court noted that she was not the only witness; rather, the victim also identified defendant and was a stronger witness. Judge Gardner concluded that defendant failed to make a prima ...


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