STATE OF NEW JERSEY v. ANDREW DENNIS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2738-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDREW DENNIS,

     Defendant-Appellant.
___________________________

              Submitted April 10, 2018 – Decided May 11, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              00-10-2041.

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

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Nicole L. Campellone,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Andrew Dennis appeals from a January 19, 2017 order

denying    his   second   petition   for   post-conviction   relief    (PCR)

without an evidentiary hearing.            We affirm because the second

petition was barred by Rule 3:22-4 and otherwise lacked merit.

      In 2001, a jury convicted defendant and two co-defendants of

multiple    counts   of    first-degree     robbery,    
N.J.S.A.   2C:15-1;

second-, third-, and fourth-degree aggravated assault, 
N.J.S.A.

2C:12-1(b)(1) to (4); second-degree burglary, 
N.J.S.A. 2C:18-2;

third-degree criminal restraint, 
N.J.S.A. 2C:13-2; conspiracy,


N.J.S.A. 2C:5-2; and various weapons offenses.           Those convictions

arose out of an armed robbery where the victim, after being robbed,

was shot in each of his knees.

      In sentencing defendant, the court granted the State's motion

for   a   discretionary    extended    term   because    defendant    was    a

persistent offender, 
N.J.S.A. 2C:44-3(a), and sentenced him to an

aggregate of sixty years in prison, with fifty-one years of parole

ineligibility.

      We affirmed defendant's convictions and sentence on direct

appeal.    State v. Dennis, No. A-0422-01 (App. Div. June 29, 2004).

The Supreme Court accepted certification, limited to the issue of

whether defendant's Sixth Amendment right to counsel was violated

when he was not represented at a probable cause hearing.               State

v. Dennis, 
182 N.J. 428 (2005).       The Court held that defendant had

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a right to counsel at the probable cause hearing, but that the

violation of the right was harmless error.                Accordingly, the

Supreme Court affirmed defendant's conviction.            State v. Dennis,


185 N.J. 300 (2005).

     In May 2006, defendant filed his first petition for PCR.                He

argued that his trial counsel had been ineffective in misadvising

him concerning his sentencing exposure, and that had he been

properly advised he would have accepted the State's plea offer.

The trial court denied that petition, but ruled that defendant had

been illegally sentenced and resentenced defendant.

     In 2009, we remanded the matter to permit defendant to order

the transcripts to be submitted in support of his PCR application.

State v. Dennis, No. A-3934-07 (App. Div. Mar. 9, 2009).                After

those   transcripts     were   submitted,     the   trial    court     denied

defendant's petition without an evidentiary hearing.              We reversed

and remanded for an evidentiary hearing.        State v. Dennis, No. A-

3934-07 (App. Div. Jan. 6, 2011).

     In 2011, the trial court conducted an evidentiary hearing.

On January 6, 2012, the court denied defendant's first petition

for PCR.   The court, however, vacated defendant's sentence and

resentenced him on April 12, 2012.        At his resentencing, defendant

was sentenced to an aggregate term of thirty years in prison, with

eighty-five   percent    of    that   time   ineligible     for   parole     as

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prescribed by the No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.

In   February   2014,   we    affirmed    the    trial   court's    denial      of

defendant's first petition for PCR. State v. Dennis, No. A-0148-12

(App. Div. Feb. 7, 2014), certif. denied, 
219 N.J. 630 (2014).

       In October 2014, defendant filed his second petition for PCR.

Defendant alleged that his first PCR trial and appellate counsel

were ineffective in failing to raise the issue of his right to

represent himself.      He also alleged that his PCR appellate counsel

was ineffective in failing to raise the issue that defendant was

resentenced without reviewing the updated presentence report with

his counsel.

       Defendant was assigned new PCR counsel and the trial court

heard oral arguments.     On January 19, 2017, the trial court denied

defendant's second petition without an evidentiary hearing.                   The

court explained the reasons for that denial on the record, finding

that   defendant's   second    petition    was    time-barred      and   without

merit.

       On this appeal, defendant contends that his second petition

was timely and that he should have been given an evidentiary

hearing.    Specifically, defendant asserts:

            POINT I – THE PCR COURT ERRED IN DENYING THE
            INSTANT PETITION AS UNTIMELY AND IN DENYING
            DENNIS' REQUEST FOR AN EVIDENTIARY HEARING



                                     4                                   A-2738-16T2
                 A.   The PCR Court Erred In Deeming The
                      Instant Petition Untimely

                 B.   The PCR Court Erred In Denying
                      Petitioner's    Request For An
                      Evidentiary Hearing

In a supplemental brief, which defendant filed himself, he also

argues:

            POINT I – THE DEFENDANT CONTENDS THAT HIS
            SECOND PCR PETITION SHOULD HAVE BEEN GRANTED
            BECAUSE AT ORAL ARGUMENT HE PROVED THAT THE
            FACTUAL PREDICATE FOR THE RELIEF SOUGHT COULD
            NOT HAVE BEEN DISCOVERED EARLIER THROUGH THE
            EXERCISE OF REASONABLE DILIGENCE, AND THE
            FACTS TO THE FARETTA ISSUE THAT WAS RAISED IN
            THE PCR COURT IF ADDRESSED DEFENDANT WOULD
            PREVAIL ON THE MERITS.

            POINT II – DEFENDANT DEMONSTRATED IN THE PCR
            COURT THAT HIS      FARETTA ISSUE WAS NOT
            PROCEDURALLY BARRED UNDER R. 3:22-4(a)(2)
            DEFENDANT SUBMITS THAT IF THE PCR COURT WOULD
            HAVE ADDRESSED THE MERITS OF HIS FARETTA ISSUE
            HE WOULD HAVE WON ON THE MERITS. THE JUDICIAL
            SYSTEM DENIED DEFENDANT WITH A FAIR PROCEEDING
            LEADING TO A JUST OUTCOME.

     We affirm the denial of defendant's second PCR petition

because the petition was barred by Rule 3:22-4 and otherwise lacked

merit.    Defendant claims that both his first PCR trial counsel and

appellate counsel were ineffective in failing to raise and argue

that defendant was denied the right to represent himself.        That

argument could have and should have been raised on his first PCR

petition.   Rule 3:22-4 precludes post-conviction relief on grounds

that could have been raised in prior proceedings.    There are three

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narrow exceptions to that rule, but none of them applies here.                R.

3:22-4(a); see also State v. Reevey, 
417 N.J. Super. 134, 148

(App. Div. 2010), certif. denied, 
206 N.J. 64 (2011).

      Here, defendant claims that on February 7, 2001, his original

trial    counsel   raised   the   subject        of   defendant   representing

himself.   Defendant now wants to contend that his first PCR trial

and appellate counsel were ineffective in failing to raise that

issue.   Defendant obviously was aware of that issue since February

2001, and he cannot now claim that he could not have previously

raised the issue.

      Defendant also has failed to establish that enforcement of

the   procedural   bar   would    result    in    a   fundamental   injustice.

Defendant has not alleged, and the record does not support, an

argument that his failure to represent himself played a role in

the determination of his guilt.           State v. Martini, 
187 N.J. 469,

481-82 (2006).     Finally, defendant's claim for relief does not

rely on a new constitutional rule of law.                   R. 3:22-4(a)(3).

Accordingly, since defendant's latest claims do not fall within

one of the exceptions, they are procedurally-barred.

      Defendant's claim that his first PCR appellate counsel was

ineffective also lacks substantive merit.              Defendant asserts that

his first PCR appellate counsel should have raised the issue that

he was not given the opportunity to review his updated presentence

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report before he was resentenced on April 12, 2012.   To establish

a prima facie case of ineffective assistance of counsel, defendant

must show that there was a deficient performance by counsel and

prejudice.   Strickland v. Washington, 
466 U.S. 668, 687 (1984);

State v. Fritz, 
105 N.J. 42, 58 (1987).

     Here, defendant has failed to make any showing of prejudice.

Defendant has not contended that there was anything in his updated

presentencing report that was inaccurate.   Thus, defendant cannot

show that he was prejudiced by his counsel's failure to review

that report with him.1

     Affirmed.




1
  On appeal, defendant also argues that he was entitled to a new
presentence report before he was resentenced in 2012. That issue
was not raised before the trial court on defendant's second
petition for PCR and, accordingly, we decline to consider it. See
State v. Stein, 
225 N.J. 582, 599 (2016).

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