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State v. Everett

December 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH EVERETT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Number 99-07-00915.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2007

Before Judges Fuentes and Grall.

Defendant Joseph Everett appeals from the order of the Law Division denying his post-conviction relief (PCR) petition. Defendant was tried before a jury and convicted of second-degree eluding, N.J.S.A. 2C:29-2b; second-degree aggravated assault by causing bodily injury while fleeing or attempting to elude, N.J.S.A. 2C:12-1b(6) and N.J.S.A. 2C:2C:29-2b; second-degree aggravated assault by recklessly causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(1); and fourth-degree assault by auto by recklessly causing serious bodily injury, N.J.S.A. 2C:12-1c(1).

On February 9, 2001, the court sentenced defendant to an aggregate extended term of eighteen years. Under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c, defendant had to serve 85% of his sentence prior to becoming eligible for parole. The court also imposed the corresponding fines and penalties. On direct appeal, we affirmed the conviction, and remanded the sentence for the trial court to limit the NERA parole disqualifier to the ordinary term, and to reduce the NERA parole supervision period to three years. State v. Everett, Docket No. A-3755-00T3 (App. Div. April 16, 2003).

In this petition, defendant argued that his trial counsel was ineffective in failing to "adequately pursue a defense relating to [his] voluntary intoxication." Specifically, defendant argues that trial counsel "should have engage[d] the services of an expert witness to evaluate the degree of intoxication and determine whether or not such a level of intoxication was inconsistent with [defendant] acting knowingly and with purpose with respect to the circumstances set forth in the State's case against him."

The trial court denied defendant's petition. On appeal, defendant's now raises the following arguments:

POINT ONE

THE AMENDED SENTENCE SHOULD BE VACATED AND A RESENTENCING HEARING HELD WITH DEFENDANT AND COUNSEL PRESENT.

POINT TWO

THE AMENDED SENTENCE SHOULD BE VACATED, BECAUSE IT EXCEEDED THE PRESUMPTIVE TERM AND VIOLATES BLAKELY AND NATALE II.

POINT THREE

THE CONVICTION SHOULD BE VACATED, BECAUSE THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE ...


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