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State v. MacIntosh

January 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLEVAS MACINTOSH,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation Nos. 488-99, 489-99, 490-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges Wefing and Lyons.

Defendant Clevas MacIntosh appeals the denial of his petition for post-conviction relief (PCR). We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On February 15, 1999, defendant walked up to an individual, who was walking his dog, and demanded money. Defendant then shot the individual in the head. The victim was transported to the hospital where a bullet was removed from his brain. He sustained injuries that left him with impaired vision, reasoning, and memory loss. On the following day, using the same handgun, defendant robbed another stranger at gun point, after demanding the victim's money. He took the money and then ran. Soon thereafter, he was apprehended.

On June 17, 1999, the State filed three accusations charging defendant with armed robbery and the unlawful possession of a weapon. On the same date, defendant pled guilty to the three accusations. On February 8, 2000, defendant moved to withdraw his guilty plea on the grounds that he lacked capacity to understand the proceedings against him. Competency hearings were held on December 14, 2000, and January 4, 2001. On February 13, 2001, the trial court denied defendant's motion to withdraw his guilty plea.

On March 1, 2001, defendant was sentenced on the first accusation, charging him with first-degree robbery, to fifteen years with twelve years and nine months of parole ineligibility, five years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and seven years and six months parole ineligibility under the Graves Act. A similar sentence to run concurrent with the first sentence was entered on the second accusation, charging defendant with first-degree robbery. On the third accusation, the third-degree weapons charge, defendant was sentenced to four years to run concurrent with the other sentences.*fn2

Defendant filed an appeal which, among other points, argued that the court should have given less weight to certain aggravating factors and more consideration to defendant's mental retardation and diminished capacity in fashioning an appropriate sentence. Our court affirmed defendant's conviction and sentence, State v. MacIntosh, No. A-4166-00T4 (App. Div. Nov. 20, 2003) (slip op.), and his subsequent petition for certification to the Supreme Court was denied. State v. MacIntosh, 179 N.J. 373 (2004).

On January 24, 2005, defendant filed this PCR petition. The trial judge heard oral argument on November 15, 2005, and, on December 15, 2005, rendered his oral decision denying the application. The trial court's order was entered on January 3, 2006, and this appeal ensued. On appeal, defendant presents the following arguments for our consideration:

POINT I

THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S MOTION AS TO THE APPELLANT'S ARGUMENT THAT HIS SENTENCE WAS ILLEGAL.

POINT II

THE TRIAL COURT COMMITTED ERROR BY NOT FINDING THE TRIAL COUNSEL WAS INEFFECTIVE ...


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