STATE OF NEW JERSEY v. BARRY WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4333-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY WILLIAMS,

Defendant-Appellant.

________________________________________________________________

June 22, 2012

Submitted November 9, 2011 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 0977-06-95.

Barry Williams, appellant pro se.

EdwardJ. DeFazio, HudsonCounty Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Barry Williams appeals from the March 18, 2010 order denying his post-conviction relief (PCR) petition. We affirm.

In 1996, a jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. At sentencing, the court determined that defendant had been convicted previously of a Graves Act offense, see N.J.S.A. 2C:43-6(c) and 44-3(d), and sentenced defendant to a mandatory extended term of life imprisonment with twenty-five years of parole ineligibility on the first-degree robbery conviction. The court merged defendant's conviction for second-degree possession of a firearm for an unlawful purpose with the robbery conviction; sentenced defendant to a ten-year prison term with five years of parole ineligibility on the conspiracy conviction; and sentenced defendant to a five-year prison term with three years of parole ineligibility on defendant's conviction for third-degree possession of a handgun without a permit. The court ordered that all sentences were to run concurrently.

On direct appeal, we affirmed defendant's robbery conviction, but vacated his conviction for conspiracy, which should have been merged into his conviction for robbery, and vacated the sentence imposed on his conviction for possession of a handgun. State v.Williams, 317 N.J. Super. 149, 159-60 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). On remand, defendant was re-sentenced to a term of imprisonment of five years with two-and-one-half years of parole ineligibility.1 Thereafter, defendant filed four PCR petitions in 1999, 2002, 2006, and 2008, all of which were denied.2 Defendant filed his fifth PCR petition, which is now before us, on October 1, 2009. The trial court denied defendant's petition in a written decision on March 18, 2010. This appeal followed.

Defendant raises a single point on appeal:

POINT I

PURSUANT TO THE PROVISIONS OF R. 3:22-4, ALL PROCEDURAL BARS MUST BE RELAXED. THE MITCHELL STANDARD MUST BE APPLIED TO THE RULING AND DEFENDANT'S INEFFECTIVE ASSISTANCE CLAIMS WARRANT A REVERSAL OF THE CONVICTION.

In addition to his argument that his PCR petition should not be time-barred, defendant asserts claims of ineffective assistance of counsel, based upon: (1) trial counsel either failing to assert or waiving defendant's Sixth Amendment right to be present at all stages of the trial; and (2) both appellate and PCR counsels' failure to read the record and raise the Sixth Amendment issue in either the direct appeal or PCR proceedings.

Defendant's arguments lack sufficient merit to warrant discussion in another written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The amended judgment of conviction is not included in the record.

2 Defendant has not included in the record the orders or decisions denying these petitions.