On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-03-0575.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2007
Before Judges Grall and Chambers.
Defendant Curtis Moore appeals from the denial of his motion for post-conviction relief (PCR). He contends that he was deprived of his right to effective assistance of counsel at sentencing. We affirm substantially for the reasons stated by Judge Fullilove in his oral decision of June 16, 2006.
In an indictment returned by the grand jurors for Essex County, defendant was charged with murder, N.J.S.A. 2C:11-3; fourth-degree possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4d. The State offered to recommend a sentence of incarceration for a term of twenty years in return for defendant's plea of guilty to a reduced charge of aggravated manslaughter, N.J.S.A. 2C:11-4c. Defendant did not accept that offer. Participating in the negotiations pursuant to Rule 3:9-3(c), Judge Fullilove indicated that if defendant entered a plea of guilty, he would impose a maximum sentence of fifteen years provided that the information disclosed in the presentence report demonstrated that the interests of justice would be served.
Defendant subsequently entered a plea of guilty to aggravated manslaughter and the weapons offenses. The judge merged defendant's convictions for the weapons offenses with his conviction for aggravated manslaughter and imposed a sentence of incarceration for fifteen years. Pursuant to the No Early Release Act, defendant must serve eighty-five percent of his sentence without possibility of parole and a term of parole supervision. N.J.S.A. 2C:43-7.2. Prior to imposing sentence, Judge Fullilove noted that defendant's age and his situation were taken into consideration when the fifteen-year term, a term five years below the then presumptive sentence for aggravated manslaughter, was offered. Defense counsel did not argue for a lower sentence.
Defendant filed a notice of appeal limited to a claim of excessive sentence. This court affirmed the sentence after oral argument. R. 2:9-11. The Supreme Court denied defendant's petition for certification. State v. Moore, 170 N.J. 88 (2001).
Defendant filed a timely pro se petition for post-conviction relief. Counsel was assigned, and defendant's attorney filed an amended petition. Judge Fullilove heard argument, and defendant was present. Defendant withdrew his pro se petition and relied upon his attorney's argument that his prior attorney was ineffective because of failure to argue for a sentence of less than fifteen years. Judge Fullilove concluded that defense counsel's performance at sentencing was objectively reasonable. He further concluded that even if defense counsel had presented the arguments now offered by defendant's attorney on PCR, he would not have imposed a different sentence. Accordingly, Judge Fullilove concluded that defendant had not established a prima facie case of ineffective assistance of counsel and denied relief.
We see no error in the judge's ruling. Defendant failed to raise a genuine question of deficient performance that had an impact on his sentence. See State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard for measuring ineffective assistance enunciated by the Supreme Court in Strickland).
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