Opinion
DOCKET NO. A-0916-13T1
02-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PERVIS SAMUELS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-00096. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant was arrested on September 22, 2009, and charged by way of a complaint with possession and distribution of a controlled dangerous substance (CDS). On February 4, 2010, defendant was indicted and charged with numerous CDS offenses and eventually pleaded guilty to one count of third-degree CDS distribution within 1000 feet of school property. Defendant later moved to vacate his guilty plea, claiming he was coerced by a gang member whom he did not identify; he did not assert his innocence. That application was denied, and defendant was sentenced to an extended six-year prison term, subject to a three-year period of parole ineligibility.
In his direct appeal, defendant argued he was: incarcerated on "a constitutionally defective complaint warrant"; should have been permitted to withdraw his guilty plea; and received an excessive sentence. We affirmed. State v. Samuels, No. A-4377-10 (App. Div. March 14, 2012). The Supreme Court denied his petition for certification. 212 N.J. 198 (2012).
Defendant filed a timely post-conviction relief (PCR) petition, arguing he was denied the effective assistance of counsel because his trial attorney: (1) improperly advised him to plead guilty to protect himself from a gang member's threats; and (2) failed to raise and brief the defect in the complaint. The PCR judge denied the petition, finding defendant unsuccessfully litigated these matters in the direct appeal, and, indeed, in the earlier appeal, we found no merit in defendant's argument that he should have been permitted to withdraw his guilty plea, Samuels, supra, slip op. at 6, and in his argument concerning alleged problems with the complaint because those problems or defects did not matter once the indictment was handed down, id. at 5.
In this appeal of the denial of his PCR petition, defendant argues:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL[.]We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
II. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
III. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO RAISE AND BRIEF THE DEFECT IN THE COMPLAINT AND WARRANT.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION