STATE OF NEW JERSEY v. EARL TERRY

NOT FOR PUBLICATION WITHOUT THE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.

EARL TERRY,1

Defendant-Appellant.

___________________________

March 13, 2014

Submitted February 26, 2014 - Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-06-1176.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Earl Terry appeals from the February 6, 2012 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a. On December 9, 2009, defendant pled guilty to second-degree unlawful possession of a weapon. In accordance with the plea agreement, on February 5, 2010, the trial judge sentenced defendant to a seven-year term of imprisonment with a one-year period of parole ineligibility.2

Defendant did not file a direct appeal. Instead, on May 31, 2011, he filed a PCR petition, seeking to vacate his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009), based on the ineffective assistance of trial counsel. He argued that counsel failed to: consult with him and review the evidence; file necessary pretrial motions; investigate possible defenses; conduct a reasonable investigation; have the handgun tested for fingerprints; and argue for mitigating factors one, two and twelve3 at sentencing. Alternatively, defendant sought a modified sentence.

In a January 27, 2012 oral opinion, Judge Ronald E. Hoffman reviewed defendant's arguments in light of the record and found that most of them related to the length, not legality, of his sentence. Thus, the arguments were procedurally barred by Rule 3:22-4 because defendant could have raised them on direct appeal. The judge also determined that defendant failed to satisfy both prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as well as the four factors in Slater supra, 198 N.J. at 158-62. The judge emphasized that defendant never denied his guilt.

On appeal, defendant raises the following contentions:

POINT I THE TRIAL COURT FAILED TO DISCUSS [DEFENDANT'S] CONSTITUTIONAL RIGHTS OR HIS UNDERSTANDING OF THE NATURE OF THE CHARGE ON THE RECORD PERSONALLY AND INDIVIDUALLY AS REQUIRED BY [RULE] 3:9-2 WHEN HE PLEADED GUILTY TO COUNT THREE OF THE INDICTMENT.

POINT II THE FACTUAL BASIS FOR THE PLEA OF GUILTY SHOULD HAVE BEEN DEVELOPED MORE CLEARLY BY DEFENSE COUNSEL OR BY THE TRIAL COURT TO ENSURE THAT [DEFENDANT] KNEW HE WAS PLEADING TO AN OFFENSE INVOLVING A CARRYING PERMIT AND NOT A HANDGUN PURCHASER'S PERMIT AND[,] THUS[,] THE PLEA OF GUILTY SHOULD HAVE BEEN VACATED BY THE COURT.

POINT III THE SENTENCE SHOULD BE MODIFIED TO A TERM OF FIVE YEARS WITH A ONE[-]YEAR PERIOD OF PAROLE INELIGIBILITY AS THE SENTENCING COURT DID NOT ADEQUATELY OR ACCURATELY SET FORTH ITS REASONING FOR APPLYING THE AGGRAVATING FACTORS IT FELT WERE APPLICABLE.

POINT IV TRIAL DEFENSE COUNSEL DID NOT ADEQUATELY ARGUE THE APPLICABILITY OF MITIGATING FACTORS ON BEHALF OF [DEFENDANT] AND THEREFORE WAS INEFFECTIVE.

POINT V ALL POINTS RAISED BY [DEFENDANT] IN HIS PRO SE [PCR] AND IN ANY OTHER SUBMISSION TO THE COURT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS BRIEF.

We decline to consider defendant's contentions in Points I, II, and III. Defendant did not present these arguments to Judge Hoffman, and they do not involve the court's jurisdiction or a matter of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009). In addition, these issues are not cognizable on appeal, Rule 3:22-2, and are procedurally barred by Rule 3:22-4.

We have considered defendant's contentions in Points IV and V in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Hoffman in his comprehensive and well-reasoned oral opinion.

1 Referenced also as Earl J. Terry, Earle Terry and Earle J. Terry throughout documentation.

2 The State agreed to permit an exception to the mandatory minimum sentence under the Grave's Act, N.J.S.A. 2C:43-6(c). Thus, defendant was sentenced to a seven-year term of imprisonment subject to a one-year period of parole ineligibility instead of three years.

3 "The defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1b(1); "The defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(2); "The willingness of the defendant to cooperate with law enforcement authorities," N.J.S.A. 2C:44-1b(12).