On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-09-1518.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Defendant Kevin Lee appeals from an order entered on March 17, 2005 denying his petition for post-conviction relief (PCR).
Pursuant to a negotiated plea agreement, defendant pled guilty to first degree aggravated manslaughter, N.J.S.A. 2C:11-4, downgraded from first degree murder, N.J.S.A. 2C:11-3a(1) or (2). Although the plea agreement called for a maximum term of nineteen years, defendant was sentenced to a term of fourteen years, subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's appeal of his sentence was heard on our excess sentencing calendar and affirmed on January 29, 2004. His petition for certification was denied by the Supreme Court on April 22, 2004, State v. Lee, 180 N.J. 150. On July 26, 2004, defendant filed a PCR petition, alleging that the sentence was illegal.
After hearing arguments, the trial judge correctly noted that
An illegal sentence is one that either violates a statute -- it's a sentence that gives more than the statute allows, gives less than the statute allows, fails to incorporate a mandatory parole disqualifier, fails to incorporate a mandatory extended term, or a sentence is illegal if there's something about the sentencing that is illegal. For example, the judge would not allow defense counsel to be present, the judge would not allow the defendant to be present, the judge would not wait for a presentence report, something along those lines, something procedurally incorrect that makes it illegal.
The judge indicated that after reviewing the transcripts from the trial and appellate arguments, he found no indication that either trial or appellate counsel were ineffective. Finally, the trial judge found that R. 3:22-2(c) bars the petition for post-conviction relief because the issues were raised and litigated on direct appeal.
In this appeal, defendant argues:
PETITIONER-APPELLANT'S SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING SINCE THE POST-CONVICTION COURT ERRED IN NOT FINDING TRIAL AND APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO SENTENCE DEFENDANT IN A SENTENCING RANGE ONE DEGREE LOWER PURSUANT [TO] N.J.S.A. 2C:44-1f(2)
THE WITHIN SENTENCE MUST BE VACATED AND THE MATTER REMANDED SINCE DEFENDANT'S APPELLATE AND PCR COUNSEL FAILED TO ARGUE [SIC] THE TRIAL COURT CONSIDERED AN IMPROPER AGGRAVATING FACTOR (THAT A FINE WOULD BE PERCEIVED BY DEFENDANT AS A COST OF BUSINESS) ...