NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5251-17T3 STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARL AUSTIN, Defendant-Appellant. _________________________ Submitted October 8, 2019 – Decided October 28, 2019 Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0309. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Alanna M. Jereb, Assistant Prosecutor, on the brief). PER CURIAM Defendant Earl Austin appeals from the February 27, 2018 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. I. The following facts are taken from the record. On May 19, 2011, defendant waived indictment and trial by jury by pleading guilty under Accusation No. 11-05-383-A to possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). Pursuant to a plea agreement, defendant would be sentenced to non-custodial probation, which would run concurrently with a previous sentence of juvenile probation. While awaiting sentencing on the Accusation, on May 26, 2011, defendant approached A.A.1 in Jersey City while armed with a 9mm handgun. Defendant demanded A.A. "give him everything he had." A.A. refused to comply and entered his vehicle in an attempt to leave. Defendant fired three shots from his weapon at A.A. at close range, striking him through his vehicle and killing him with two of the shots. On May 28, 2011, defendant turned himself in to the police "for the murder of [A.A.]." 1 We use initials to protect the identity of the victim. A-5251-17T3 2 On February 14, 2012, a Hudson County grand jury charged defendant under Indictment No. 12-02-0309 with purposely causing the death of another, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); causing the death of an individual during the commission of a robbery, N.J.S.A. 2C:11-3(a)(3) (count two); causing the death of an individual during the commission of a carjacking, N.J.S.A. 2C:11-3(a)(3) (count three); purposely causing serious bodily injury with a deadly weapon in the course of a theft, N.J.S.A. 2C:15-1 (count four); infliction of injury and use of force upon an occupant of a motor vehicle, N.J.S.A. 2C:15-2 (count five); possession of a weapon with the intent to use the same weapon unlawfully, N.J.S.A. 2C:39-4(a) (count six); and possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count seven). On January 7, 2015, defendant pled guilty to count one, as amended to aggravated manslaughter, and the other charges were dismissed. At the plea hearing, defendant admitted that he fired three shots at A.A. resulting in A.A.'s death. His guilty plea was conditioned upon receiving a maximum sentence of fifteen years in state prison, a five-year post-release parole period, and ...
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