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State v. McHellon

September 10, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIE MCHELLON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 04-08-1384.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 5, 2007

Before Judges Cuff and Lintner.

Defendant was charged under three Ocean County indictments. A ten-count indictment, No. 03-09-1219, returned on September 24, 2003, charged defendant with multiple drug charges involving cocaine and marijuana. Count Five charged defendant with third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, on July 25, 2003. Count Nine charged defendant with third-degree distribution of marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7, on August 13, 2003.

Indictment No. 04-06-1128, returned on June 23, 2004, charged defendant with one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. Indictment No. 04-08-1384, returned on August 25, 2004, charged defendant with third-degree eluding, N.J.S.A. 2C:29-2b (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Three).

Defendant was initially accepted into drug court, thus being eligible for special probation, N.J.S.A. 2C:35-14. However, he subsequently failed to cooperate with testing and did not appear for a scheduled court appearance, causing a bench warrant to issue. Defendant resisted arrest when the authorities attempted to execute the bench warrant. At a hearing on March 11, 2005, following argument of counsel, the judge revoked defendant's eligibility for special probation and returned him to the regular trial calendar for prosecution on the offenses delineated in the three indictments.

On March 29, 2005, pursuant to a negotiated plea agreement, defendant pled guilty to the fifth and ninth count school zone charges in Indictment No. 03-09-1219; the resisting arrest charge in Indictment No. 04-06-1128; and the eluding charge in Indictment No. 04-08-1384. Thereafter, defendant moved to withdraw his plea, claiming that he was innocent of all charges. On August 5, 2005, the judge denied defendant's motion, granted the State's motion for a mandatory extended term, N.J.S.A. 2C:43-6f, and imposed an aggregate six-year custodial sentence with forty-two months of parole ineligibility in accordance with the plea agreement.

Defendant appeals the order denying his motion to withdraw his plea and the sentence imposed, raising the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE FACTUAL BASES FOR THE PLEAS WERE INSUFFICIENT. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE DEFENDANT WAS NOT PROPERLY ADVISED AS TO THE DIRECT PENAL ...


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