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State v. Morales

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND MORALES, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 03-03-0409.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2007

Before Judges Wefing and R. B. Coleman.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In May 2003 defendant entered a negotiated plea of guilty to second-degree robbery, N.J.S.A. 2C:15-1, and was thereafter sentenced to seven years in prison, subject to the terms of the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"). Defendant appealed his sentence, and the matter was heard on an Excessive Sentence Oral Argument calendar. This court affirmed his sentence. State v. Morales, No. A-0244-03T4, May 24, 2004.

Defendant later filed a petition seeking post-conviction relief, alleging he had received ineffective assistance from his counsel. An attorney was assigned to represent defendant in connection with this petition. After hearing oral argument, the trial court denied relief. This appeal followed.

On appeal, defendant raises the following arguments.

DEFENDANT'S CONVICTION MUST BE REVERSED OR HIS SENTENCE BE MODIFIED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

A. Trial Counsel Failed To Fully Inform Defendant As To The Consequences of His Guilty Plea

B. Trial Counsel Failed To Conduct An Investigation

C. Trial Counsel Failed To Request An Interpreter When Defendant Reviewed The Plea Form

D. Trial Counsel Failed To Adequately Argue The Mitigating Factors At Defendant's Sentencing

E. Appellate Counsel Failed To Raise Any Of The Issues As To Trial Counsel's Ineffectiveness

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate, first, that his attorney's performance was deficient, i.e., that the attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693. In attempting to do so, a defendant must overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In addition, a defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. New Jersey has expressly adopted this two-prong approach. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant first contends that he is entitled to post-conviction relief because his attorney did not review with him the mandatory period of parole supervision that attaches to a sentence imposed under NERA. Defendant, however, at the time he entered his guilty plea, executed the "Supplemental Plea Form for No Early Release Act (NERA) Cases (N.J.S.A. 2C:43-7.2)," specifically indicating he was aware of and understood the significance of NERA in terms of parole. In addition, the trial court carefully questioned defendant on this topic when defendant appeared before the court to enter his plea.

Defendant's second contention, that his attorney was ineffective for not conducting an investigation, requires no discussion in our judgment, for defendant does not allege what such an investigation would have revealed. R. 2:11-3(e)(2).

We also reject defendant's contention that his attorney was ineffective for not requesting an interpreter for defendant in conjunction with the preparation of the plea documents. We find no support in the record before us that defendant needed the assistance of an interpreter. During the plea colloquy, defendant told the trial court that he had gone through the tenth grade in school and could read and write. The presentence report, moreover, indicates that defendant, who was twenty years old, was born in the United States and lived in New Jersey for eighteen years. It also indicates that while defendant was expelled from school in the tenth grade, he later returned and earned his GED degree.

Similarly, defendant's contention that his attorney failed to argue adequately at sentencing is belied by the record.

Defendant's attorney made a detailed argument why the trial court should depart from the terms of the plea bargain and sentence to a lower term. That the trial court rejected these arguments does not equate to a determination that the attorney was ineffective.

Having concluded that defendant's assertions that his trial attorney was ineffective lack merit, it perforce follows that his assertion that appellate counsel was ineffective for not raising these issues with respect to the performance of his trial attorney similarly lacks merit.

The order under review is affirmed.

20071005

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