STATE OF NEW JERSEY v. TROY A. HOLMES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0968-04T40968-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY A. HOLMES,

Defendant-Appellant.

______________________________________________________________

 

Submitted March 22, 2006 - Decided April 11, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Ind. No. 99-07-2199.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Brian D. Driscoll, Designated

Counsel, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Laurie A. Corson,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

In our prior decision affirming defendant's convictions and sentence, we stated:

Defendant was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of cocaine with intent to distribute in a quantity less than one-half ounce, N.J.S.A. 2C:35-5a(1) (count two). Defendant's motion to suppress evidence was denied. The jury found defendant guilty on both counts. Because of a prior conviction under N.J.S.A. 2C:35-5, defendant was subject to a mandatory extended term sentence. N.J.S.A. 2C:43-6(f), N.J.S.A. 2C:43-7. Count one was merged with count two, and defendant was sentenced to a ten-year term with a three-year period of parole ineligibility.

. . . .

On a routine visit to his parole officer, defendant was asked to give a urine sample. When his urine tested positive for cocaine, his parole officer searched his knapsack and found eighty-five small bags of cocaine. A search of his person revealed $566 in cash. The specimen was later tested at the State Police Laboratory and proved negative.

. . . .

Once defendant's urine sample tested positive, defendant's parole officer had reasonable suspicion to believe that contraband or other evidence of a parole violation would be found on defendant's person or in his possession. The fact that a laboratory test on that sample later proved negative does not affect the reasonableness of the parole officer's suspicion under the circumstances apparent at the time. The search was clearly reasonable and permissible under State v. Maples, 346 N.J. Super. 408 (App. Div. 2002).

Defendant's contention that the trial judge should have entered a judgment of acquittal sua sponte borders on the frivolous. Parole Officer Jones testified that when defendant arrived at the office, he had a knapsack, "like a school bag," with him. Jones said the bag was not in his office before defendant arrived, and when defendant went to the lobby area to drink water, the bag was no longer in the office but reappeared when defendant returned. Mr. Weatherby, Jones' supervisor, also testified that he saw defendant with an overcoat and a green duffle bag (the knapsack) "next to his person." There was more than sufficient evidence for the jury to infer that defendant was in possession of the knapsack.

[State v. Holmes, No. A-3571-00 (App. Div. May 6, 2002) (slip op. at 1-4), certif. denied, 174 N.J. 363 (2002).]

On November 26, 2002, defendant filed a pro se petition for post-conviction relief (PCR). An amended petition was filed by appointed counsel in April 2004. Following oral argument on July 16, 2004, the trial court entered an order on July 21, 2004, denying defendant's PCR application. The reasons for the order were set forth in a twenty-two page written decision.

Defendant now makes the following arguments:

POINT I

THE FINDING OF AGGRAVATING FACTOR 2 UNDER N.J.S.[A.] 2C:44-1 WAS PLAIN ERROR. (NOT RAISED BELOW.)

POINT II

THE SENTENCE VIOLATES THE RULE OF BLAKELY V. WASHINGTON. (NOT RAISED BELOW.)

POINT III

PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO DEFENDANT. (NOT RAISED BELOW.)

POINT IV

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION.

Our review of the record and applicable law leads us to conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

In our prior opinion, we noted that defendant claimed his sentence was "manifestly excessive, unduly punitive and not in conformance with the code of criminal justice." We rejected those arguments, however:

With respect to defendant's sentence, Judge Natal followed the guidelines of State v. Dunbar, 108 N.J. 80 (1987), and made findings of aggravating factors that are supported by the evidence. Defendant has an extensive juvenile history of drug offenses. He also was convicted as an adult for aggravated assault, aggravated assault upon a police officer, and possession of a weapon for an unlawful purpose. The judge then weighed the aggravating factors against the non-existent mitigating factors to impose the maximum extended term of ten years. He did not impose the maximum parole ineligibility term, and he ran the sentence concurrent to defendant's violation of parole. We find no abuse of the trial judge's discretion in sentencing.

PCR proceedings are not opportunities "to relitigate cases already decided on the merits . . . ." State v. Preciose, 129 N.J. 451, 459 (1992). When the claim presented to the court in a PCR proceeding is "identical or substantially equivalent" to the claim already adjudicated on the merits, consideration of the claim is precluded. State v. McQuaid, 147 N.J. 464, 484 (1997) (internal quotation marks omitted). That is the situation here, and we find no basis to vacate or modify defendant's sentence. Even without consideration of aggravating factor two, the trial court's finding of aggravating factors three, six, and nine, with no mitigating factors, fully justify the sentence imposed.

Defendant's direct appeal concluded when certification was denied on September 6, 2002. We therefore conclude that the standards set forth in Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 N.J. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004), do not apply. See State v. Natale, 184 N.J. 458, 494 (2005) ("[A]pplying our holding to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal . . . best balances principles of fairness and repose.").

To successfully argue that trial counsel did not provide the level of assistance required under the Sixth Amendment, a defendant must show that counsel's performance was not only inadequate but also prejudiced his defense so that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). In a well-reasoned decision, the PCR judge considered each of defendant's ineffective assistance of counsel arguments. The judge concluded that defendant failed to satisfy both prongs of the Strickland/Fritz test because counsel's performance was not deficient and defendant was not prejudiced. We affirm substantially for the reasons stated by Judge Natal in his comprehensive written decision dated July 21, 2004. We are also satisfied, based on our review of the record, that PCR counsel adequately represented defendant.

Affirmed.

 

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A-0968-04T4

April 11, 2006