STATE OF NEW JERSEY v. JERMAINE WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE WALKER,

Defendant-Appellant.

________________________________________________

October 22, 2014

Submitted October 15, 2014 - Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1820.

Jermaine Walker, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged in an indictment with thirty-one offenses arising out of a series of armed robberies committed in a single morning with four other individuals. In a second indictment, defendant was charged with first-degree murder and two weapons offenses in connection with another incident. Defendant pleaded guilty to sixteen counts of the first indictment and two counts of the second, including aggravated manslaughter. On April 27, 2007, defendant was sentenced to an aggregate fifteen-year prison sentence. No direct appeal was filed.

Defendant filed a timely post-conviction relief (PCR) petition, claiming he was denied the effective assistance of counsel because his trial attorney: failed to advise him that no State witness was able to identify him as a participant in the robberies; and should have moved to suppress his confession to the robberies because defendant was allegedly under the influence of drugs at the time. The PCR petition was denied, and we affirmed by order entered October 19, 2012.

On July 1, 2013, defendant, without the assistance of counsel, filed another PCR petition, arguing his trial attorney was ineffective because he: failed to investigate a victim's dying declaration that purportedly identified someone other than defendant as the shooter; and was otherwise unprepared for trial, leaving defendant no choice but to plead guilty. Defendant also argued his PCR counsel was ineffective because he never interviewed the arresting officer, any witnesses or defendant's trial attorney. This second PCR petition was denied on August 15, 2013, for reasons set forth in a thorough written decision of the same date.

Defendant appeals, arguing

I. DEFENDANT'S SUCCESSIVE PCR PETITION W[AS] NOT IDE[N]TICAL TO HIS EARLIER PCR PETITION FOR THE INTEREST OF JUSTICE, DEFENDANT'S SECOND PCR [PETITION] SHOULD NOT HAVE BEEN DENIED.

II. TRIAL COURT ABUSED ITS DISCRETION [IN] DENYING DEFENDANT'S [PCR PETITION] WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING ON THE MERITS OF HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

III. [PCR] COUNSEL['S] . . . FAILURE TO RAISE AND ADVANCE DEFENDANT'S MERIT[OR]IOUS CLAIMS AT DEFENDANT'S FIRST PETITION FOR PCR WAS INEFFECTIVE IN VIOLATION OF DEFENDANT'S RIGHT OF COUNSEL.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

As for defendant's arguments regarding his trial counsel, we agree that Rule 3:22-4 required their presentation in the first PCR petition, but defendant has also argued his PCR counsel was ineffective for failing to pursue these arguments at that time. We, thus, agree that defendant is entitled, without further concern for the rule-based procedural bars cited in the PCR judge's opinion, to argue his PCR counsel was ineffective. Having said that, however, we agree with the PCR judge that defendant presented nothing but bald, unsupported assertions as to PCR counsel's performance or the alleged newly-discovered dying declaration. Accordingly, defendant did not present sufficient allegations to warrant an evidentiary hearing or post-conviction relief. See R. 3:22-10(b); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.