STATE OF NEW JERSEY v. EMANUEL STOKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0214-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMANUEL STOKES a/k/a EUMANUEL,

Defendant-Appellant.

_____________________________

October 20, 2011

Submitted September 27, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 04-05-0634 and 04-09-1275.

Joseph E. Krakora, Public Defender, attorney forappellant (AndrewP. Slowinski, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Emanuel Stokes appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial counsel. We affirm.

Defendant pled guilty under Indictment No. 04-09-1275 to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). He was sentenced to a twenty-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also pled guilty under a separate indictment to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He was sentenced to a concurrent five-year term of imprisonment subject to NERA.

Defendant appealed his sentences. He challenged the judge's findings of aggravating and mitigating factors on the aggravated manslaughter conviction, and argued for a reduction of the sentence on the possession of CDS conviction to three years consistent with his plea agreement in that matter. We heard the appeal on our excessive sentencing oral argument calendar, affirmed defendant's sentence on the aggravated manslaughter conviction, and remanded on the possession of CDS conviction for entry of an amended judgment of conviction imposing a concurrent three-year term of imprisonment. The Supreme Court denied defendant's petition for certification. State v. Stokes, 194 N.J. 446 (2008).

Defendant filed a PCR petition, alleging that trial counsel was ineffective because he failed to challenge Indictment No. 04-09-1275 and argue mitigating factors at sentencing. In an oral opinion, Judge Falcone made detailed findings and concluded that defendant would not have prevailed on a motion to dismiss the indictment, defendant received the benefit of mitigating factors in the very favorable plea agreement he received, and defendant unsuccessfully argued mitigating factors on his direct appeal. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE PCR COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND SHOULD HAVE GRANTED DEFENDANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

(a) The PCR Court Erred in Holding that Defendant Failed to Establish a Prima Facie Case of Ineffective Assistance Based on Trial Counsel's Failure to Challenge the Prosecutor's Improper Presentation to the Grand Jury.

(b) The PCR Court Erred in Holding that Defense Counsel's Failure to Argue for Any Mitigating Factors at Sentencing Was Excused By the Prosecutor's Consideration of Similar Factors in Plea Negotiations.

(c) Defendant Was Entitled to An Evidentiary Hearing On His Petition for PCR.

We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Falcone in his comprehensive and well-reasoned oral opinion rendered on April 15, 2010.