STATE OF NEW JERSEY v. ERIK ELLISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1419-08T41419-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIK ELLISON,

Defendant-Appellant.

________________________________

 

Submitted February 10, 2010 - Decided

Before Judges Sabatino and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-05-1772.

Yvonne Smith Segars, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Erik Ellison, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). We affirm.

The PCR petition arises out of defendant's 2003 conviction for first-degree robbery, N.J.S.A. 2C:15-1. The conviction followed defendant's plea of guilty to that charge, which was part of a three-count indictment, pursuant to a plea agreement with the State. Under the plea agreement, the State agreed to argue for a sentence not to exceed ten years, subject to an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State also agreed to dismiss the remaining counts of the indictment. The agreement further provided that defendant could argue to the court that he be sentenced as a second-degree, rather than as a first-degree, offender. A handwritten portion of the plea form also recited that defendant waived his right to appeal.

Consistent with the plea agreement, the trial judge sentenced defendant, who had a prior criminal record, to a ten-year term, conditioned on the parole ineligibility period prescribed by NERA.

The indictment stemmed from defendant's involvement, along with an accomplice, Jeffrey Pfeffer, in a gas station robbery in Winslow Township. The robbery was committed by defendant threatening the attendant with a rubber mallet, and telling him to give the money to Pfeffer. The money was handed to Pfeffer, and defendant fled the scene.

Pfeffer eventually cooperated with the police, telling them who defendant was and where he lived. Consequently, Pfeffer received a more lenient plea bargain than defendant, and he was sentenced to a seven-year term.

Defendant did not file a direct appeal of his sentence. Instead, in 2007 he filed a PCR petition. The petition was referred to the same judge who had taken defendant's plea and sentenced defendant. After considering the record and hearing oral argument, the judge denied the PCR petition. The judge found that the petition was untimely and otherwise procedurally barred under Rules 3:22-3 and 3:22-4. The judge also found defendant's substantive arguments lacked merit.

On appeal, defendant argues that his PCR petition should not have been rejected on procedural grounds. He also renews numerous substantive arguments that he had unsuccessfully presented to the PCR judge concerning the alleged ineffectiveness of his trial attorney.

In particular, defendant variously contends that: (1) trial counsel misrepresented that defendant's sentence was going to be the same as Pfeffer's; (2) trial counsel should have presented testimony at sentencing from defendant's psychiatrist, Pedro Garcia, M.D. (who had diagnosed defendant with bipolar disorder, as reflected in a written report tendered at the time of sentencing), and also mitigating statements from defendant's mother; (3) trial counsel failed to inform him of his right to appeal the sentence within forty-five days, despite the waiver-of-appeal language in the plea form; (4) the plea form contained a mistake regarding the parole ineligibility period, which was only corrected on the spot at the time the plea was taken; (5) trial counsel failed to object that the arrest complaint had an incorrect date for the incident; and (6) cumulative errors committed by trial counsel.

We have carefully considered all of defendant's contentions. As a procedural matter, we agree with defendant that the trial judge should not have rejected his petition as untimely, given the ambiguity raised by the "waiver-of-appeal" language in the plea form. Even so, we reject his substantive arguments in their entirety, substantially for the cogent reasons set forth in Judge Natal's oral opinion dated July 25, 2008. Defendant has not demonstrated that his trial counsel was ineffective or that any alleged ineffectiveness materially prejudiced him. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).

 
Affirmed.

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A-1419-08T4

February 26, 2010