NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1237-19 STATE OF NEW JERSEY, Plaintiff-Respondent, v. IAN A. PERSAUD, Defendant-Appellant. _______________________ Submitted March 17, 2021 – Decided April 20, 2021 Before Judges Alvarez and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 93-06- 0959. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel; Daniel J. Burzon, Legal Assistant, on the brief). PER CURIAM Defendant Ian Persaud appeals from a September 16, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. We discern the following facts from the record. On March 21, 1993, defendant, a Guyanese immigrant, was arrested after police found various controlled dangerous substances (CDS) in his vehicle. On February 2, 1995, a jury convicted defendant of fourth-degree possession of CDS, N.J.S.A. 2C:35- 10(a)(3); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(11). On March 24, 1995, defendant was sentenced to three years' probation. Defendant did not appeal his conviction or sentence. In 1997, defendant was convicted in North Carolina of four drug-related offenses: possession with the intent to sell and deliver marijuana, manufacturing marijuana, maintaining a dwelling for the keeping of drugs, and possession of heroin. In 2002, defendant was convicted in North Carolina of conspiracy to possess with intent to distribute fifty grams or more of cocaine and cocaine base. Defendant was then sentenced to life imprisonment pursuant to 21 U.S.C. §§ 841, 851. In 2012, defendant filed a writ of habeas corpus arguing that his mandatory life sentence, based on the finding that he had two prior convictions for "felony" drug offenses, was contrary to United States v. Simmons, 649 F.3d A-1237-19 2 237, 247 (4th Cir. 2011) (en banc). Persaud v. United States, Nos. 12-cv-509, 01-cr-36-7, 2019 U.S. Dist. LEXIS 93810, at *3 (W.D.N.C. June 4, 2019). A judge in the United States District Court for the Western District of North Carolina agreed, finding that the highest sentence defendant could have received for the 1997 North Carolina convictions was eight months and, therefore, they were not "felony" drug offenses for purposes of the sentencing enhancement statute. Id. at *6-7. In 2019, the judge accordingly vacated defendant's life sentence and remanded the case for re-sentencing. Id. at *7. On September 18, 2018, more than twenty years after his 1995 conviction, defendant filed a pro se petition for PCR. Following oral argument, Judge Dennis R. O'Brien issued a clear and cogent opinion from the bench denying defendant's request for an evidentiary hearing as well as his petition for …
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