STATE OF NEW JERSEY v. RICHARD AMOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2581-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD AMOS,

Defendant-Appellant.

________________________________

Submitted February 15, 2011 Decided March 9, 2011

Before Judges Parrillo and Yannotti.

On appeal from Superior Court of New Jersey, Law

Division, Mercer County, Indictment No. 03-10-0661.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Kimmo Z.H. Abbasi, Designated Counsel, of

counsel and on the brief).

John L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Dorothy Hersh, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Amos appeals from an order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(c)(2). Thereafter, the State entered into a plea bargain with defendant pursuant to which defendant pled guilty to an accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, in exchange for the State's recommendation of a sentence of twenty-two-and-one-half years with the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 and agreement to move to dismiss the murder indictment. The details of the crime were set forth at time of plea, wherein defendant admitted confronting the victim with a gun, pointing it at his head, and discharging it.

The trial court sentenced defendant in accordance with the plea agreement. We heard defendant's direct appeal on an excess sentence calendar, see Rule 2:9-11, and affirmed his sentence. State v. Amos, A-1249-05T4 (Dec. 11, 2007). The Supreme Court denied defendant's petition for certification. State v. Amos 195 N.J. 419 (2008).

Defendant filed a timely PCR petition claiming that his counsel had been ineffective for failing to argue mitigating factors at time of sentencing. Defendant sought an evidentiary hearing on his claims.

On October 19, 2009, the trial court issued a comprehensive oral opinion denying defendant's petition. The judge found that the issue presented in defendant's petition was "substantially identical" to the issue previously raised and resolved on defendant's direct appeal, and therefore procedurally barred on PCR review under Rule 3:22-5. The judge also rejected defendant's claim on its merits, reasoning:

I find that all possible mitigating factors raised by the petitioner now were presented to the Court for its review, whether through [defense counsel] or through the petitioner himself and the pre-sentence report. I will note the mitigating factor numbers were not specifically mentioned by [defense counsel]. However, as I indicated, all of this was before the Court. The sentencing judge had all of the information regarding the mitigating factors. The failure of [defense counsel] to cite Mitigating Factors 2 and 11 I find had no impact on the sentencing outcome. Counsel's performance was not deficient. His failure to cite his specific statutory citation did not affect the sentence imposed by [the sentencing judge].

On appeal from the denial of his PCR petition, defendant presents the following arguments:

I. THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST-CONVICTION RELIEF AS THE CONDUCT OF TRIAL COUNSEL WAS INEFFECTIVE.

II. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

III. THE PCR COURT ERRED WHEN IT DETERMINED THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED.

A. Defendant's Delay in Filing His

Petition For Post-Conviction Relief Is Not Prejudicial to The Prosecution.

B. The Importance of Defendant's Claims Manifest Good Cause to Relax the Time Bar.

IV. THE PCR COURT ERRED WHEN IT DETERMINED THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY R. 3:22-5.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Neafsey's October 19, 2009 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).