STATE OF NEW JERSEY v. VINCENT ANFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2328-08T42328-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT ANFIELD,

Defendant-Appellant.

___________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment No.

02-06-0917.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Adam W. Toraya, Designated

Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent (Stephen E.

Raymond, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Vincent Anfield appeals from the denial of his post conviction relief (PCR) petition. We affirm. We gather the following facts from the record developed before the trial court.

On January 23, 2004, defendant pled guilty to one count of second degree robbery, N.J.S.A. 2C:15-1(a)(1). Defendant was originally indicted for first degree robbery. Under the terms of a plea agreement entered into by the parties, the State also agreed to dismiss other pending charges against defendant as reflected in Burlington County Indictment Nos. 03-11-1484 and 03-08-1093, as well as other charges originating from Camden County. Finally, because defendant agreed "to enter an open plea" to the charge of second degree robbery, the State was permitted to argue that defendant should be sentenced to the maximum term permitted for a second degree offense. Conversely, defendant reserved the right to argue that the court should sentence him to a term within the range applicable to a third degree offense.

At the sentencing hearing conducted on May 7, 2004, the court found two aggravating factors: N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense, and N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others like him. As a non-statutory mitigating factor, the court found that "prior . . . to his serious involvement with drugs," defendant had "pretty much led a law abiding life."

Thereafter, the court concluded that "the interest of justice" required that defendant be sentenced as a third degree offender. The court then sentenced defendant to a five-year term, the maximum ordinary sentence permitted under the third degree range. Given the nature of the offense, e.g. robbery, the sentence imposed by the court was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring that defendant serve eighty-five percent of the five-year term before becoming eligible for parole.

Acting on defendant's appeal, we reviewed the sentence imposed by the court in the context of an Excessive Sentencing Oral Argument (ESOA) calendar. R. 2:9-11. By order dated March 8, 2005, we remanded the matter "for reconsideration in light of the trial judge's statement that he was sentencing defendant as a third degree offender but imposed a five year sentence." State v. Anfield, Docket No. A-5990-03 (App. Div. Mar. 14, 2005). We also directed that any revised judgment of conviction (JOC) executed after the remand hearing "must contain a three year period of parole ineligibility." Ibid.

Defendant appeared before the trial court on September 16, 2005, for re-sentencing. After reaffirming the applicability of NERA, and mindful of the new required analysis as announced by the Court in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005), certif. denied, 199 N.J. 132 (2009), the trial court again sentenced defendant to a five-year term.

We reviewed this sentence on defendant's second direct ESOA appeal. We affirmed the sentence and remanded for the trial court to amend the JOC to reflect that defendant was subject to a three-year period of parole supervision as required by NERA. State v. Anfield, Docket No. A-4305-05 (App. Div. Sept. 22, 2006).

On May 25, 2006, before the second ESOA appeal had been decided, defendant filed a pro se PCR petition alleging ineffective assistance of trial and appellate counsel. On May 18, 2007, court-assigned counsel filed an amended PCR petition and supplemental brief on defendant's behalf. The matter came before the trial court on June 26, 2008. After hearing the arguments of counsel, the PCR judge denied defendant's petition without an evidentiary hearing, finding that defendant had failed to establish a prima facie case of ineffective assistance of counsel. The PCR judge memorialized his ruling in a written decision dated August 14, 2008.

Against these facts, defendant now appeals, raising the following arguments:

POINT ONE

THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT TWO

THE COURT ERRED IN FINDING THE DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ARE BARRED BY THE PROVISIONS OF R. 3:22 BECAUSE THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The relief sought by defendant is barred under Rule 3:22-5 because the PCR petition seeks to re-litigate issues that were directly and conclusively adjudicated in defendant's direct appeal.

 
Affirmed.

(continued)

(continued)

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A-2328-08T4

March 19, 2010