STATE OF NEW JERSEY v. RYNE M. USHER-SWIFT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4960-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RYNE M. USHER-SWIFT,

Defendant-Appellant.

____________________________________________________

March 21, 2011

Submitted March 8, 2011 - Decided

Before Judges Yannotti and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment

No. 04-06-0766.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Matheu D. Nunn, Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of two counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1; two counts of conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(1); carjacking, in violation of N.J.S.A. 2C:15-2(a)(2); conspiracy to commit carjacking, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2(a)(2); two counts of theft, in violation of N.J.S.A. 2C:20-2(b)(3); and terroristic threats, in violation of N.J.S.A. 2C:12-3. The trial court sentenced defendant to a fifteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for one of the robberies, and a consecutive twenty-year term of imprisonment, also subject to NERA parole ineligibility, for the carjacking. In addition, the court imposed a concurrent fifteen-year period of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, for the other robbery, and a concurrent three-year term for terroristic threats. The court merged defendant's other convictions.

On appeal, we affirmed defendant's convictions in an unpublished opinion but remanded for resentencing. State v. Usher-Swift, No. A-5072-04T4 (March 21, 2006). The Supreme Court denied defendant's petition for certification. 187 N.J. 491 (2006).

At the resentencing, the court imposed a ten-year term of imprisonment, with the 85% period of parole ineligibility mandated by NERA, for the one robbery conviction, and a consecutive fifteen-year term of imprisonment, subject to NERA parole ineligibility, for the carjacking. The court reimposed the same sentences it had imposed originally for defendant's other convictions. However, for the first time the court ordered defendant's sentence on those convictions to run consecutively to an eight-year term imposed upon him on an unrelated conviction in Essex County.

On appeal from the judgment of conviction memorializing this resentencing, which we heard on a sentencing calendar pursuant to Rule 2:9-11, we concluded that "the part of the sentence imposed on remand that made defendant's sentences consecutive to his sentence on Essex County [I]ndictment 03-12-3978-I exceeded the court's authority on the remand and is therefore invalid." Accordingly, we remanded the case to the trial court for entry of an amended judgment of conviction that deleted the part of the judgment that made defendant's sentence consecutive to the sentence imposed in Essex County, but affirmed in all other respects. State v. Usher-Swift,

No. A-3911-06T4 (April 29, 2008).

Thereafter, defendant filed a petition for post-conviction relief. This petition was denied by Judge Manahan by an oral opinion delivered on November 19, 2009.

On appeal, defendant presents the following arguments:

POINT I - THE ORDER DENYING POST-

CONVICTION RELIEF SHOULD BE

REVERSED AND THE DEFENDANT'S

CONVICTIONS VACATED BECAUSE

THE DEFENDANT MADE A PRIMA FACIE

SHOWING THAT HIS FOURTEENTH

AMENDMENT DUE PROCESS RIGHT

TO BE PROTECTED AGAINST THE

INTRODUCTION OF UNRELIABLE

IDENTIFICATION EVIDENCE WAS

VIOLATED.

POINT II - SINCE THE DEFENDANT MADE A

PRIMA FACIE SHOWING OF

INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL, THE PCR COURT

MISAPPLIED ITS DISCRETION

IN DENYING POST-CONVICTION

RELIEF WITHOUT CONDUCTING

A FULL EVIDENTIARY HEARING.

POINT III - THE COURT'S RULING DENYING

POST-CONVICTION RELIEF

VIOLATED THE DEFENDANT'S

RIGHT TO EFFECTIVE ASSITANCE

OF COUNSEL AS GUARANTEED BY

THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

POINT IV - THE DEFENDANT REASSERTS ALL

OTHER ISSUES RAISED IN

DEFENDANT'S PRO SE PETITION

FOR POST-CONVICTION RELIEF

AND IN PCR COUNSEL'S BRIEF

IN SUPPORT OF POST-CONVICTION

RELIEF.

(A)

TRIAL COUNSEL WAS INEFFEC-

TIVE IN FAILING TO OBJECT TO

THE TRIAL COURT'S IDENTIFICA-

TION AND ACCOMPLICE LIABILITY

JURY INSTRUCTIONS, AND APPELLATE

COUNSEL WAS INEFFECTIVE IN

FAILING TO RAISE THIS ISSUE

ON DIRECT APPEAL.

(B)

BOTH TRIAL COUNSEL AND

APPELLATE COUNSEL WERE IN-

EFFECTIVE BECAUSE THEY FAILED

TO COMMUNICATE WITH DEFENDANT

CONCERNING TRIAL AND APPELLATE

STRATEGY.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Manahan's oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that the evidence of defendant's guilt, including his confession to commission of the robberies and carjacking, was overwhelming.

Affirmed.