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State v. Perez

September 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWIN PEREZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 98-03-0459 and 01-07-1352.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Winkelstein and Yannotti.

Defendant Edwin Perez appeals from an order entered on December 1, 2005, which denied his petition for post-conviction relief (PCR). We affirm.

In February 1998, defendant was charged under a Hudson County indictment with possession of a controlled dangerous substance (CDS) with intent to distribute the same, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count five); possession of CDS with intent to distribute the same within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count six); possession of CDS, N.J.S.A. 2C:35-10a(1) (count seven); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count nine); and unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3f (count ten).

On June 28, 1998, defendant entered a guilty plea before Judge Kevin G. Callahan to count five, which was amended to charge defendant with conspiracy to distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5. The prosecutor agreed to recommend the dismissal of the remaining charges and imposition of a flat seven-year sentence of incarceration, with forfeiture of the money seized. Defendant did not appear for his sentencing on September 24, 1999. In or about December 2000, defendant was convicted in New York of contempt of court. He was incarcerated for approximately nine months, and was thereafter extradited to New Jersey. In June 2001, defendant was charged with bail jumping, N.J.S.A. 2C:29-7. On July 19, 2001, defendant entered a plea to this offense before Judge Callahan.

Defendant was sentenced on September 7, 2001. Judge Callahan found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge also found defendant's remorse to be a mitigating factor. The judge imposed a seven-year sentence on the drug offense, and a consecutive twelve-month sentence for bail jumping. Defendant did not take a direct appeal challenging these sentences. Defendant was paroled on February 7, 2002. Subsequently, defendant was convicted of a federal drug offense.

On August 16, 2004, defendant filed a petition for PCR. Defendant argued that he was entitled to be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005). He additionally asserted that his trial counsel was ineffective at the sentencing proceeding because he failed to seek findings by the judge of certain mitigating factors. Defendant further claimed that trial counsel erred because he failed to advise defendant that his conviction could result in the enhancement of a sentence imposed for a subsequent federal drug offense. Judge Callahan heard the application on December 1, 2005, and entered an order on that date denying PCR for reasons stated on the record. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT I:

A TRIAL COURT MUST, UNDER THE NEW RULE OF LAW, WEIGH THE AGGRAVATING AND MITIGATING FACTORS UNENCUMBERED BY THE PRESUMPTIVE STATUTORY TERM WHEN SENTENCING THE DEFENDANT.

POINT II:

THE DEFENDANT DID NOT RECEIVE FROM HIS TRIAL ATTORNEY EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENDANT'S TRIAL ATTORNEY DID NOT PROVIDE ...


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