State of New Jersey v. Shakeem Banks ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1766-22
A-1768-22
A-2268-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAKEEM BANKS,
Defendant-Appellant.
____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY ELKIN,
Defendant-Appellant.
____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES LEDBETTER,
Defendant-Appellant.
___________________________
Submitted September 24, 2024 – Decided November 4, 2024
Before Judges Smith and Vanek.
On appeal from the Superior Court of New Jersey,
Law Division, Salem County, Indictment Nos. 16-11-
0498, 15-12-0578, and 14-09-0508.
Jennifer N. Sellitti, Public Defender attorney for
appellant Shakeem Banks in A-1766-22 (Joseph A.
Manzo, Designated Counsel, on the brief).
Jennifer N. Sellitti, Public Defender, attorney for
appellant Gary Elkin in A-1768-22 (Monique Moyse,
Designated Counsel, on the brief).
Jennifer N. Sellitti, Public Defender, attorney for
appellant Charles Ledbetter A-2268-22 (Susan Brody,
Designated Counsel, on the brief).
Kristin J. Telsey, Salem County Prosecutor, attorney
for respondent in A-1766-22 and A-1768-22 (Matthew
M. Bingham, Assistant Prosecutor, of counsel and on
the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent in A-2268-22 (David Galemba, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
In these appeals, calendared back-to-back, defendants Shakeem Banks
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(Banks), Gary Elkin (Elkin), and Charles Ledbetter (Ledbetter) (collectively
defendants), raise similar legal issues under different factual circumstances.
All three defendants appeal from orders denying their post-conviction relief
(PCR) motions based on ineffective assistance of counsel and disqualification
of the Salem County Prosecutors Office (SCPO). Ledbetter also appeals the
denial of his PCR motion seeking the production of Division of Child
Protection and Permanency (Division) records regarding his care as a juvenile.
Based on our thorough review of the record and application of prevailing
decisional law, we affirm. Not only do we conclude there was no basis for
disqualification of the SCPO, but each defendant fails to meet the
Strickland/Fritz 1 standard. Ledbetter also has not demonstrated the Division
records he sought were necessary to pursue his PCR petition sufficient to
overcome the statutory presumption of confidentiality.
I.
We glean the salient facts from the motion records as to each of the
orders being appealed.
A. Banks
1
Strickland v. Washington, 466 U.S. 668, 694 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
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3
On January 23, 2017, Banks pleaded guilty to first-degree robbery at a
service station in Carney's Point Township. During the plea allocution before
the Honorable Benjamin C. Telsey, J.S.C., Banks acknowledged that during
the theft, he knowingly or purposefully placed the victims in fear of immediate
bodily injury by threatening the use of a deadly weapon. Banks testified he
had the opportunity to review the plea forms with his attorney, who was
available to answer any of his questions.
In exchange for the plea, the State of New Jersey (State) agreed to
recommend Banks for a five-year sentence with an eighty-five percent No
Early Release Act (NERA) 2 disqualifier, as a second-degree offender. Judge
Telsey sentenced Banks consistent with the plea agreement. Banks did not file
a direct appeal.
Over four years later, Banks filed a motion seeking to disqualify the
SCPO due to an alleged conflict of interest. A different trial court judge
denied defendant's motion.
Banks filed a pro se PCR petition, which was denied by another trial
court judge in an oral decision and December 5, 2022 order. Banks filed a
2
N.J.S.A. 2C:43-7.2. NERA requires a defendant to serve at least eighty-five
percent of the custodial sentence imposed for certain first- and second-degree
violent crimes.
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notice of appeal from the denial of his PCR petition, raising the following
arguments in his merits brief:
A. DID THE COURT ERR BY FINDING TRIAL
COUNSEL PROVIDED EFFECTIVE
REPRESENTATION DURING THE PRE-
PLEA PORTION OF THE CASE?
B. DID THE COURT ERR BY MISAPPLYING
ITS DISCRETION IN DENYING THE PCR
MOTION WITHOUT CONDUCTING A FULL
EVIDENTIARY HEARING WHERE
PETITIONER MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL?
C. DID THE COURT ERR BY DENYING
BANKS'S MOTION TO DISQUALIFY THE
SCPO FROM HIS PCR CASE?
B. Elkin
On May 31, 2015, Elkin repeatedly bludgeoned a man with a hammer
while the man was laying on a couch. Six days later, the victim passed away
at the hospital due to the blunt force trauma to his head. Two years later, Elkin
pleaded guilty to aggravated manslaughter before Judge Telsey.
Judge Telsey sentenced Elkin in accordance with the recommended
sentence under the plea agreement to fifteen years' incarceration, subject to
NERA, and five years of parole supervision thereafter. At the sentencing
hearing, the court found the following aggravating factors: (i) three, the risk
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that Elkin will commit another offense; (ii) six, the extent of Elkin's prior
criminal record and the seriousness of the present offense; and (iii) nine, the
need to deter Elkin and others from violating the law. 3 In addition, the court
gave only "slight weight" to mitigating factor four, that there were substantial
grounds tending to excuse or justify the conduct. 4
Elkin did not file a direct appeal but, instead, filed a pro se petition for
PCR on April 9, 2020. Elkin also filed a motion to disqualify the SCPO from
handling the PCR proceedings, which was denied in a May 4, 2022 order.
Another trial court judge denied the PCR motion in a December 5, 2022 order
accompanied by a written decision. This appeal followed. Elkin raises the
following arguments on appeal:
A. DID THE COURT ERR BY DENYING AN
EVIDENTIARY HEARING TO ELKIN ON
HIS CLAIM THAT COUNSEL RENDERED
INEFFECTIVE ASSISTANCE BY FAILING
TO ADVOCATE ADEQUATELY AT
SENTENCING?
B. DID THE COURT ERR BY DENYING
ELKIN'S MOTION TO DISQUALIFY THE
SCPO FROM HIS PCR CASE?
3
N.J.S.A. 2C:44-1(a)(3), (6), (9).
4
N.J.S.A. 2C:44-1(b)(4).
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C. Ledbetter
The relevant facts and procedural history are set forth in our opinion
affirming Ledbetter's convictions and sentence on direct appeal, State v.
Ledbetter, No. A-1527-15 (App. Div. Jan. 19, 2019) (slip op. at 2–8). We
briefly summarize only the facts relevant to our disposition.
After a jury trial for charges stemming from Ledbetter's physical assault
of a woman directly and through his pit bull, Ledbetter was convicted of
second, third, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)-
(3); third-degree endangering an impaired or helpless person, N.J.S.A. 2C:12-
1.2(a); and third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4.
Ledbetter was sentenced on October 30, 2015 as a persistent offender to
an aggregate sentence of nineteen years imprisonment, subject to NERA. We
affirmed Ledbetter's convictions and sentence 5 and the Court denied
certification. State v. Ledbetter, 239 N.J. 411 (2019).
In November 2020, Ledbetter's assigned PCR counsel filed a motion for
disclosure of Division records regarding his care as a juvenile, which was
denied in an order accompanied by a written decision. Ledbetter then filed an
5
Ledbetter, slip op. at 1.
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amended PCR petition.
In December 2021, Ledbetter's PCR counsel filed a motion to disqualify
the SCPO from representing the State, which was denied in an order
accompanied by a written opinion. Ledbetter's amended PCR petition was
denied in a December 5, 2022 order accompanied by a written decision.
Ledbetter filed a notice of appeal, raising the following points in his
merits briefs:
A. DID THE COURT ERR BY DENYING AN
EVIDENTIARY HEARING TO LEDBETTER
ON HIS CLAIM THAT COUNSEL
RENDERED INEFFECTIVE ASSISTANCE IN
FAILING TO ENGAGE AN EXPERT
WITNESS ON CANINE AGGRESSION?
B. DID THE COURT ERR BY DENYING AN
EVIDENTIARY HEARING TO LEDBETTER
ON HIS CLAIM THAT COUNSEL
RENDERED INEFFECTIVE ASSISTANCE IN
FAILING TO OBTAIN EVIDENCE OF HIS
MENTAL DISABILITIES AND PRESENT IT
AT SENTENCING?
C. DID THE COURT ERR BY DENYING THE
DEFENSE MOTION TO RELEASE DIVISON
RECORDS?
D. DID THE COURT ERR BY DENYING THE
DEFENSE MOTION TO DISQUALIFY THE
SCPO?
II.
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We begin by outlining our standard of review on each of the issues
before us. Determining whether counsel, or an entire firm or office, should be
disqualified is an issue of law "subject to de novo plenary appellate review."
City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010); State v. Hudson,
443 N.J. Super. 276, 282 (App. Div. 2015).
The denial of defendants' PCR petitions without an evidentiary hearing
are also subject to de novo review "'of both the factual findings and legal
conclusions of the PCR court.'" State v. Reevey, 417 N.J. Super. 134, 147
(App. Div. 2010) (quoting State v. Harris, 181 N.J. 391, 421 (2004)).
However, "the PCR court's determination to proceed without an evidentiary
hearing" is reviewed under the abuse of discretion standard. State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "Although [Rule] 3:22-1 does not
require evidentiary hearings to be held on [PCR] petitions, [Rule] 3:22-10
recognizes judicial discretion to conduct such hearings." 6 State v. Russo, 333
N.J. Super. 119, 138 (App. Div. 2000).
III.
6
Ledbetter's appeal of the denial of his motion for release of the Division's
records is also governed under a de novo standard since his request for the
records was made in furtherance of his PCR petition. State v. Nash, 212 N.J.
518, 540-41 (2013); State v. Pierre, 223 N.J. 560, 576 (2015).
A-1766-22
9
A.
Defendants each argue the entire SCPO should be disqualified to prevent
the appearance of impropriety because of a conflict of interest between Judge
Telsey and Assistant Prosecutor Telsey 7 due to their familial relationship. We
disagree the entire SCPO should be disqualified in this case simply because
Judge Telsey is Assistant Prosecutor Telsey's brother-in-law. Accordingly, we
affirm.
"Attorneys who serve as counsel for governmental bodies must avoid not
only direct conflicts of interests, but any situation which might appear to
involve a conflict of interest." In re Op. No. 415 of the Advisory Comm. on
Prof'l Ethics, 81 N.J. 318, 324 (1979). To warrant disqualification, there must
be a real ground for questioning the entire prosecutor's office's appearance of
impropriety or a conflict of interest. See State v. Harvey, 176 N.J. 522, 529
(2003).
"[T]he 'appearance' of impropriety must be something more than a
'fanciful possibility,' and [] a claim of impropriety must have some reasonable
basis." State v. Irizarry, 271 N.J. Super. 577, 597 (App. Div. 1994) (quoting
7
In 2018, the relevant time period for the disqualification motions, Prosecutor
Telsey's title was Assistant Prosecutor as she was not appointed to Prosecutor
until 2021.
A-1766-22
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Higgins v. Advisory Comm. on Prof'l Ethics, 73 N.J. 123, 129 (1977)). "An
'appearance of impropriety is determined not from the perspective of the
attorney involved but from the public's vantage.'" Harvey, 176 N.J. at 531(quoting In re Op. No. 653 of the Advisory Comm. on Prof'l Ethics, 132 N.J.
124, 130 (1993)).
Existing decisional law establishes requests for disqualification of an
entire prosecutor's office are closely scrutinized and rarely granted. Id. at 529
(reversing a trial court order disqualifying a prosecutor's office from handling
a petition for PCR based on allegations of prosecutorial misconduct, primarily
concerning one prosecutor); State v. Marshall, 123 N.J. 1, 176-78 (1991), cert.
denied, 507 U.S. 929 (1993) (declining to disqualify a prosecutor's office
based on a claim that the office had an "interest in vindicating its management
of the discovery file" in a prior related case); Irizarry, 271 N.J. Super. at 591,
601 (holding that an entire prosecutor's office need not be disqualified where
some members of the office were familiar with immunized testimony or could
be called as witnesses); see also State v. Marshall, 148 N.J. 89, 285, cert.
denied, 522 U.S. 850 (1997) (declining to disqualify the Attorney General
from representing the State where the Director of the Division of Criminal
Justice was First Assistant Prosecutor at the time of remand and defendant
A-1766-22
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alleged prosecutorial misconduct).
In a combined written decision, the trial court set forth a comprehensive
analysis denying each of the defendants' disqualification motions, finding the
involvement of the SCPO did not create an appearance of impropriety or
conflict of interest. The trial court highlighted that the facts underpinning each
of the PCR petitions occurred prior to 2018, whereas Assistant Prosecutor
Telsey did not take office until 2021. Although the trial court acknowledged
the Attorney General's Office found no conflict of interest, the decision relied
primarily on the attenuation of Salem County Assistant Prosecutor Telsey's
appointment, the Assistant Prosecutor's lack of prior representation or personal
involvement in any of these cases, and lack of "side-switching."
The trial court found disqualification of the entire SCPO was not
warranted because the additional measures taken by the SCPO, as well as the
Supreme Court of New Jersey, cured any potential for an appearance of
impropriety or actual conflict. Assistant Prosecutor Telsey was screened off
from each of the defendants' PCR cases and the Supreme Court issued an order
precluding Judge Telsey's involvement. 8
8
The order issued by the Supreme Court precluding Judge Telsey's
involvement was not included in the appendices. There is also no document in
A-1766-22
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In addition to the fact that Assistant Prosecutor Telsey was properly
screened and has no role in defendants' matters, the Attorney General's broad
supervision over county prosecutors also prevents the need to disqualify the
entire SCPO. State v. Smith, 478 N.J. Super. 52, 64 (App. Div. 2024)
("[w]hile the county prosecutor supervises the county office, the county
prosecutors and the county prosecutors' offices are ultimately subject to the
Attorney General's supervision and control."); N.J.S.A. 52:17B-103; see also
Yurick v. State, 184 N.J. 70, 78-79 (2005) (explaining the Attorney General's
supervisory powers over county prosecutors). Should the need arise, "the
Attorney General may supervise a county prosecutor and his or her office and,
where appropriate, decide to step in and take over a prosecution." Smith, 478
N.J. Super. at 65; N.J.S.A. 52:17B-106 to 107; Wright v. State, 169 N.J. 422,
438 (2001) (explaining "the Attorney General's supersedure power appears to
have been bestowed with the understanding that it was intended to ensure the
proper and efficient handling of the county prosecutors' 'criminal business'")
(quoting Coleman v. Kaye, 87 F.3d 1491, 1501 (3d Cir. 1996)). The Attorney
General's supervisory authority over a county prosecutors' office, provides
__________________________
the record evidencing actions taken to screen off the Assistant Prosecutor.
However, the parties do not dispute these facts.
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additional insurance against conflicts of interest or an appearance of
impropriety.
For these reasons we affirm the denial of defendants' motion to
disqualify the SCPO.
B.
We turn to consider the substance of defendants' PCR petitions. Based
on our review of each petition under prevailing law, we affirm each of the
orders denying PCR relief.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obligated to show not only the particular manner in which
counsel's performance was deficient, but also that the deficiency prejudiced his
right to a fair trial. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. Under
the first prong of this test, the defendant must demonstrate "counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
Defendant must also show "that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable." Ibid. That is,
"there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694.
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The mere filing of a PCR claim does not entitle the defendant to an
evidentiary hearing since they "must do more than make bald assertions that he
[or she] was denied the effective assistance of counsel." State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999); see also R. 3:22-10(e)(2) (stating
that a court shall not hold an evidentiary hearing "if the defendant's allegations
are too vague, conclusory or speculative"). An evidentiary hearing is only
appropriate pursuant to Rule 3:22-10(b), when the defendant has presented a
prima facie claim, material issues of disputed fact lie outside the record, and
resolution of those issues necessitates a hearing. State v. Porter, 216 N.J. 343,
355 (2013). "A prima facie case is established when a defendant demonstrates
'a reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.'"
Ibid. (quoting R. 3:22-10(b)).
i. Banks
Banks argues his attorney provided ineffective assistance by failing to
review key pieces of discovery with him until after the plea agreement was
signed, providing inadequate pre-plea representation.
We conclude on de novo review plea counsel's performance was not
ineffective under Strickland/Fritz. Banks's completion of the plea forms and
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acknowledgement under oath at the plea colloquy belies his claim. On the plea
form, Banks acknowledged understanding the charges against him, the rights
he was waiving by pleading guilty, and his sentencing exposure both under the
plea agreement and if he were to proceed to trial. Banks further swore under
oath he was satisfied with his attorney's advice and had no questions about the
plea.
During the plea hearing, Banks further testified to reviewing the plea
forms with counsel who was available to answer any questions he had
throughout the proceedings. Banks also swore under oath that the answers he
provided to the court were truthful and that no one forced him to plead guilty.
Banks's completion of the plea forms, and sworn testimony at the plea hearing,
were not mere perfunctory gestures but rather, were representations to the
court that he understood the consequences of the plea agreement. See State v.
Simon, 161 N.J. 416, 444 (1999) ("[s]olemn declarations in open court [when
entering a plea] carry a strong presumption of verity") (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)).
While the State concedes Banks was not specifically asked whether
counsel reviewed discovery with him, Banks acknowledged under oath he was
satisfied with his counsel who answered all his questions prior to the plea
A-1766-22
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agreement being entered. Thus, Banks fails to meet the standard set forth
under the first Strickland/Fritz prong based on his own testimony under oath at
the plea allocution.
Even if Banks had met the standard set forth in the first prong of the
Strickland/Fritz test, he does not satisfy the second prong. Banks does not
make any argument as to how review of the discovery would have reasonably
altered the outcome of his plea hearing. Banks also does not argue he would
have insisted on going to trial had he been provided with discovery prior to his
plea agreement considering the evidence against him, which included an
admission and statement of his co-defendant. Absent a showing the outcome
of the proceedings would have been different, Banks fails to meet the second
prong of the Strickland/Fritz standard. Thus, we affirm.
ii. Elkin
After our de novo review, we are unpersuaded that Elkin's counsel was
ineffective by failing to present evidence of certain mitigating factors at his
sentencing hearing. We affirm.
Elkin's assertion that his attorney failed to argue at sentencing there was
evidence of his diminished capacity, based on his mental health and substance
abuse history, is not grounded in the record. Prior to the imposition of Elkin's
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sentence, counsel advised the court of Elkin's mental health status, and the
evaluations conducted by both parties. The sentencing judge was also aware
of Elkin's mental health history since that judge presided over the motion
practice related to the mental health evaluations. As a result of Elkin's mental
health evaluation, motion practice, and plea negotiations, the State ultimately
agreed to a recommended sentence of fifteen years, far less than Elkin's
maximum exposure of life in prison if convicted of murder at trial.
The record also establishes that the sentencing judge was aware of
Elkin's restitution to the victim's family and Elkin's youth at the time of the
offense. The same judge heard Elkin's agreement to pay restitution for funeral
expenses as part of the plea. That judge had the presentence report and
ultimately did not find Elkin's age to be a relevant factor on sentencing.
Absent a showing that the State would have further reduced his sentence
based on an additional showing of his diminished capacity, Elkin fails to meet
the standard set forth in the second Strickland/Fritz prong. Elkin has not
demonstrated how any further argument by counsel would have affected his
sentence since his expert did not opine that his mental health conditions
vitiated the mens rea for the criminal acts he was charged with. Compare State
v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (suggesting that mental
A-1766-22
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health conditions could be "highly relevant" to mitigating factor four where the
defendant was convicted of stabbing her former husband because of
"continuous physical, sexual and psychological abuse committed by the
victim" and "post-traumatic distress disorder, consistent with and related to
'severe and chronic' spousal abuse"). It is also unlikely the State would have
reduced Elkin's sentence even further where plea negotiations had already
considered his mental health history.
Similarly, Elkin also fails to cite to any expert evidence correlating his
youth to the offenses he committed. Even if Elkin's age was an appropriate
mitigating factor that should have been specifically referenced, because he was
being sentenced pursuant to a plea agreement afforded a presumption of
reasonableness, and Elkin was already being sentenced based on a lesser
charge, it is unlikely an argument pertaining to his youth as a mitigating factor
would have affected the outcome of his sentence.
Thus, we affirm.
iii. Ledbetter
Ledbetter does not satisfy the first Strickland/Fritz prong since counsel
was not ineffective in failing to call a canine behavior expert at trial, making a
reasonable strategic decision to challenge Ledbetter's identification at the
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scene of the attack. Presenting a qualified canine behavior expert would have
been a concession that Ledbetter was the person handling the dog in
contradiction of trial counsel's strategy to challenge the identification of his
client.
"[A] defense attorney's decision [of] which witnesses to call to the stand
is 'an art' and a court's review of such a decision should be 'highly
deferential[.]'" State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland,
466 U.S. at 693). The failure to present witnesses whose "testimony would
have served only to undermine the entire defense strategy" is not deficient
performance. State v. Coruzzi, 189 N.J. Super. 273, 322 (App. Div. 1983).
Ledbetter also fails to show a reasonable probability that trial counsel's
failure to introduce an expert on canine aggression would have altered the
outcome of the proceeding under the second Strickland/Fritz prong. We
affirm.
IV.
We also affirm the PCR court's denial of Ledbetter's motion seeking the
discovery of Division records.
N.J.S.A. 9:6-8.10(a)(a) sets forth that "[a]ll records of child abuse
reports . . . all information obtained by the Department of Children and
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Families in investigating such reports . . . shall be kept confidential and may
be disclosed only under . . . circumstances expressly authorized under
subsections" (b) through (g). A court may authorize disclosure "upon its
finding that access to such records may be necessary for determination of an
issue before it . . . ." N.J.S.A. 9:6-8.10(a)(b)(6).
In determining whether disclosure is appropriate, "[c]ourts must weigh
the conflicting constitutional rights of criminal defendants to a fair trial and
the confrontation of witnesses, against the State's compelling interest in
protecting child abuse information and records." In re Z.W., 408 N.J. Super.
535, 539 (App. Div. 2009) (citing Pa. v. Ritchie, 480 U.S. 39, 59-61 (1987)).
Trial courts must consider whether disclosure is "essential to the resolution of
any issue before the court, as well as whether the information contained in
those records is available from any other source through diligent investigation
on the part of the defendant." Id. at 539-40 (quoting State v. Cusick, 219 N.J.
Super. 452, 457-59 (App. Div. 1987)).
Ledbetter's reliance on Marshall and Bellamy to support his position that
the statutorily confidential Division records should have been released is
misplaced. In Marshall, the defendant sought to inspect the prosecution's
entire file, not the Division's, relating to his trial. Marshall, 148 N.J. at 270.
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Unlike in Bellamy, Ledbetter did not seek Division records for sentencing, but
for a collateral proceeding in the hopes they would reveal information
potentially favorable to his yet-to-be formulated PCR claims. State v.
Bellamy, 468 N.J. Super. 29, 48-49 (App. Div. 2021).
Since Ledbetter was thirty-one years old at the time of the offense and
thirty-three years old at the time of sentencing, the need for Division records
regarding defendant's juvenile care to pursue PCR was tenuous at best.
Ledbetter is seeking highly confidential and statutorily protected documents
from the Division that are unlikely to relate to his current offense because he
was well beyond childhood at the time of the attack. There is no prima facie
evidence in the record that would link Ledbetter's childhood to the crimes for
which he was sentenced.
Records pertaining to Ledbetter's own mental health could have been
obtained through other methods. For example, the certification of Ledbetter's
mother stated he was in the care of his grandmother for a portion of his
childhood, he received treatment for attention deficit hyperactivity disorder,
and took special education classes. Thus, Ledbetter had an avenue to obtain
the information through less intrusive sources by using diligent efforts.
We affirm.
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V.
Defendants' merits briefs do not address the excessive sentencing issue
raised on appeal. Accordingly, we consider the issue abandoned. Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). Even if it were not
abandoned, a claim for excessive sentence is not cognizable in a PCR petition.
State v. Acevedo, 205 N.J. 40, 45 (2011) (holding "mere excessiveness of [a]
sentence otherwise within authorized limits . . . can only be raised on direct
appeal" and excessiveness of a sentence does not pertain to sentence "legality"
and is "not cognizable on PCR, or under . . . Rule 3:21-10(b)(5)").
Any arguments not addressed in this decision are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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