Denial Of A Post-Conviction Relief (“PCR”) Petition Without An Evidentiary Hearing Under Appeal
Docket No. A-1875-20
Decided November 10, 2022
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal of the denial of his post-conviction relief (“PCR”) petition without an evidentiary hearing.
In November 2013, an officer was investigating an illegally parked truck. The officer eventually identified defendant as the driver of the vehicle, he obtained defendant’s Pennsylvania driver’s license, and determined there were two outstanding warrants for his arrest. The defendant advised the officer that he had a handgun on him, and the officer subsequently retrieved the loaded firearm from defendant’s waistband. Defendant was under the impression that he did nothing wrong because he had a concealed gun carry permit in Florida.
Defendant was indicted on one count of second degree unlawful possession of a handgun without a permit and one count of fourth degree unlawful possession of hollow-point bullets. After he was indicted, defendant applied to PTI and was rejected because he was charged with a second degree offense, had a prior conviction, and was already afforded the opportunity of rehabilitation through probation and incarceration. Defendant appealed, and the court found that defendant failed to present clear and convincing evidence overcoming the presumption of ineligibility for admission to PTI based on the charged second-degree offense. Defendant was eventually convicted on both counts of the indictment and sentenced to five years in prison with a forty-two-month period of parole ineligibility on the second-degree possessory weapons offense, and a concurrent 365-day term on the fourth-degree offense. Defendant appealed his conviction (still pending) and moved for release on bail pending his appeal and a limited remand for reconsideration of his PTI application under a 2014 Attorney General directive, which was issued after he was rejected from PTI. Defendant also contended that his conviction was unlawful because on the date of his arrest, he was entitled to amnesty from prosecution under L. 2013, c. 117, § 2, which the Legislature enacted in August 2013.
The aforementioned statute permitted individuals who possessed a handgun in violation of N.J.S.A. 2C:39-5(b), unlawful possession of a handgun without a permit, to lawfully retain possession of the handgun for 180 days, from August 8, 2013, through February 4, 2014. The trial court agreed with defendant and found he was entitled to assert the amnesty defense. His conviction was vacated, and the State appealed to the Supreme Court of New Jersey. The Supreme Court reversed the trial court’s order and reinstated defendant’s conviction for unlawful possession of the handgun, reasoning that because defendant did not raise the amnesty defense at trial, it was waived. The Court did explain that defendant could file a PCR petition to try to demonstrate that his counsel was ineffective for not raising the amnesty defense at trial.
Defendant later filed a verified, pro se PCR petition alleging trial counsel was ineffective by not raising the amnesty defense at trial and he was prejudiced by counsel’s alleged error. Defendant also argued that his trial counsel was ineffective for not disputing that his Pennsylvania offense was comparable to the second-degree offense charged in the indictment. Unpersuaded, the trial court rejected defendant’s arguments that his trial counsel was ineffective under Strickland v. Washington. Defendant then appealed.
On appeal, defendant contended that he is entitled to an evidentiary hearing on his claims that his trial counsel was ineffective since he failed to argue adequately about PTI and present an affirmative amnesty defense at trial. To establish a prima facie claim of ineffective assistance of counsel under Strickland, a defendant is required to present competent evidence establishing facts demonstrating: (1) counsel’s handling of the matter fell below an objective standard of reasonableness and (2) there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Appellate Court affirmed the trial court’s ruling, articulating that defendant failed to sustain his burden under both prongs of the Strickland standard on both of his ineffective assistance of counsel claims.
At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to petitions for post-conviction relief. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.