NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2013.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1348.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (William Specht, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Fisher and Koblitz.
Defendant Seth Johnson appeals from a February 7, 2012 order denying his petition for post-conviction relief (PCR) without a plenary hearing. Defendant entered into a plea agreement with the State pursuant to which he pleaded guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b. Four other armed robbery counts and various other counts were dismissed. The State agreed not to seek an extended term and also agreed that the sentences would run concurrently to each other and to any violation of probation pending in Essex County. Pursuant to the plea agreement, defendant was sentenced to an aggregate term of ten years, subject to the 85% parole ineligibility requirement of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant did not appeal his conviction. We affirm the denial of his PCR petition.
The following facts are taken from the police reports provided by defendant as well as his admissions when pleading guilty. On the evening of April 26, 2008, six individuals were robbed at gunpoint in Jersey City. As the Jersey City Police Officers approached the scene, three men fled in a grey Nissan Pathfinder and a chase ensued, ending after the Pathfinder crashed through a gate into nearby Liberty State Park. The suspects fled on foot into the park's marshes with the police close behind, and, when the chase ended, with the assistance of dogs, officers arrested three men including defendant, who was found in the water. He was seen putting his hand down into the sand. Proceeds of the robbery were recovered at the scene where the Pathfinder was abandoned.
The following day, a jackstay search yielded a black .40 caliber loaded handgun in approximately ten feet of water in the marsh. The gun and bullets were photographed and the serial number recorded before the gun was placed into evidence.
On appeal defendant raises the following issue:
POINT I: THE LOWER COURT ERRED IN DENYING MR. JOHNSON'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
In order to set aside a guilty plea based on deficient legal representation, a defendant must show that (1) "counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (2) that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial." State v. Maldon, 422 N.J.Super. 475, 482 (App. Div. 2011) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted).
Defendant argues that counsel was ineffective by not filing a motion to suppress the gun. He argues that counsel should have attacked the chain of custody and posits that the gun may not have been related to the robbery because it was not found where defendant was arrested. Defendant supports this argument with no independent investigation or any other evidence. He relies on speculation that perhaps an expert could review tide charts and come to the conclusion that the gun was found too far away from defendant's location to have been hidden by him. Defendant does not claim he would have insisted on going to trial had the gun been excluded from evidence. Rather, he argues that the exclusion ...