STATE OF NEW JERSEY v. SOLOMON MITCHELL

NOT FOR PUBLICATION WITHOUT THE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.

SOLOMON MITCHELL,

Defendant-Appellant.

__________________________________

May 9, 2014

Submitted April 30, 2014 Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-05-0411.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Solomon Mitchell appeals from the order that denied his post-conviction relief (PCR) petition without an evidentiary hearing. We affirm.

Twelve years ago, in 2002, police executed a search warrant at co-defendant Patricia Sherwood's home, where they found Sherwood and defendant in possession of 9.6 pounds of marijuana. The police arrested defendant, Sherwood, and Sherwood's adult daughter. Thereafter, a grand jury indicted the three co-defendants, and a petit jury found defendant and Sherwood guilty of fourth-degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); second-degree possession of five pounds or more of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(10) (count two); and second-degree conspiracy to distribute five pounds or more of marijuana, N.J.S.A. 2C:5-2 (count three). At sentencing, the judge merged count one into count two and sentenced defendant on counts two and three to concurrent five-year custodial terms.

Defendant appealed and made the following arguments:

POINT I THE PROSECUTOR ENGAGED IN INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially raised below)

POINT II INADMISSIBLE HEARSAY WAS ADDUCED AT TRIAL. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10. (Not raised below)

POINT III SHERWOOD'S CLAIM THAT DEFENDANT LEFT A MESSAGE WHICH THREATENED HER WAS INADMISSIBLE OTHER BAD ACT EVIDENCE, AND HER CLAIM THAT SHE FEARED DEFENDANT AS A RESULT OF THE ALLEGED THREAT WAS NOT RELEVANT AND UNDULY PREJUDICIAL. (Not raised below)

POINT IV DEFENDANT SHOULD HAVE BEEN TRIED SEPARATELY FROM [PATRICIA] AND MONTIA [SHERWOOD]. (Partially raised by co-defendant [Patricia] Sherwood but not by defendant)

POINT V THE TRIAL COURT ERRONEOUSLY FAILED TO GIVE REQUIRED LIMITING INSTRUCTIONS. (Not raised below)

POINT VI DEFENDANT'S CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, AND A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED OR A NEW TRIAL ORDERED[.]

POINT VII DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE[.]

We affirmed defendant's conviction and sentence on count two, but remanded for entry of an amended judgment merging count three into count two. State v. Mitchell, No. A-2573-04 (App. Div. August 2, 2006) (slip op. at 3). The Supreme Court denied defendant's petition for certification. State v. Mitchell, 188 N.J. 578 (2006).

Four years later, on August 13, 2010, defendant filed his PCR petition. In his petition, he alleged his trial counsel did not advise him of the immigration consequences of going to trial and being convicted. Defendant also alleged his trial counsel "breached a duty to investigate and advise petitioner about immigration consequences of plea alternatives."

After defendant submitted his petition, his counsel filed a letter brief in which he raised the following points:

[I]. LEGAL ARGUMENT

POST-CONVICTION RELIEF IS A DEFENDANT'S LAST OPPORTUNITY TO RAISE A CONSTITUTIONAL CHALLENGE TO THE FAIRNESS AND RELIABILITY OF A CRIMINAL VERDICT IN OUR STATE SYSTEM. STATE V. RUE, 175 [N.J.] 1, 18 (2002)[.]

A. INEFFECTIVE ASSISTANCE OF COUNSEL[.]

B. PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY THE FAILURE OF COUNSEL TO ADEQUATELY ADVISE PETITIONER REGARDING HIS IMMIGRATION STATUS AND THE CONVICTION CONSEQUENCES.

C. OTHER ISSUES FOR DISCUSSION.

1. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF COUNSEL TO MOVE TO DISMISS THE CASE FOR LACK OF A SPEEDY TRIAL PURSUANT TO BARKER V. WINGO[.]

2. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR THE FAILURE TO RAISE THE MIRANDA AND SUPPRESSION DECISIONS.

D. ALL OTHER ISSUES RAISED BY PETITIONER IN ANY OF HIS PRIOR PRO-SE PETITIONS OR FILINGS ARE HEREBY REPEATED AND INCORPORATED.

E. THE PETITIONER SHOULD NOT BE TIME-BARRED.

Following oral argument, Judge Darrell M. Fineman denied defendant's PCR petition in a comprehensive written opinion dated July 19, 2012. We affirm, substantially for the reasons given by Judge Fineman in his well-reasoned decision. Defendant's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).