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State v. Merz


April 28, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-06-0719.

Per curiam.


Submitted February 5, 2008

Before Judges Skillman and LeWinn.

Defendant appeals from the January 17, 2006 order of the trial court denying his petition for post-conviction relief. Having reviewed the entire record, we affirm.

On June 1, 1999, defendant was indicted for first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a) (count one); and second-degree vehicular homicide in violation of N.J.S.A. 2C:11-5 (count two). On September 29, 2000, defendant entered a guilty plea to the first-degree aggravated manslaughter charge. Pursuant to his plea bargain, the State agreed to dismiss count two of the indictment, and to recommend a sentence of thirteen years. As a further condition of the plea, the State sought to have defendant sentenced under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On October 20, 2000, defendant was sentenced to a term of thirteen years with an 85% parole disqualifier.

On April 23, 2001, defendant appealed his sentence pursuant to this court's Excessive Sentence Oral Argument (ESOA) calendar under Rule 2:9-11. On January 14, 2002, this court entered an order rejecting defendant's argument that he should be permitted to withdraw his guilty plea because he was not adequately informed of the consequences of the extended period of parole supervision mandated by NERA. We affirmed defendant's conviction and sentence, but added the following language: "However, we do not foreclose defendant from moving before the trial court to withdraw his plea based on a particularized showing that he was unaware of all the penal consequences of his plea notwithstanding the execution of the NERA supplemental plea form."

Defendant filed a petition for post-conviction relief on March 27, 2004. He defined his post-conviction relief issues as follows: "INEFFECTIVE ASSISTANCE OF COUNSEL; Unjustified Interference with defendant's defense, misinformation, systematic misconduct, negligence and Illegal Indictment."

Counsel was assigned to represent defendant. Counsel stated at the hearing on the petition held on January 6, 2006, that defendant's "major request . . . is to ask that this Court reduce [defendant's] sentence to a ten-year term with the NERA provisions." Counsel cited State v. Marinez, 370 N.J. Super 49 (App. Div.), certif. denied, 182 N.J. 142 (2004), for the proposition that defendant's thirteen-year term in combination with the NERA parole disqualifier rendered his sentence excessive.

The trial judge concluded that defendant had presented no cognizable grounds on which to grant post-conviction relief. He found, further, that State v. Marinez afforded defendant no grounds for relief, as that case had involved a direct appeal from conviction and sentence. As the court noted, defendant previously pursued an appeal of his sentence through the ESOA process. Moreover, defendant presented no evidence at the post-conviction relief hearing to support his claim of ineffective assistance of counsel. Therefore, the judge properly denied defendant's petition for post-conviction relief.

This court's prior order of January 14, 2002 expressly addressed, and rejected, the excessive sentence argument defendant attempted to resuscitate through post-conviction relief. That order afforded defendant an opportunity to seek to withdraw his plea "based on a particularized showing that he was unaware" of the NERA consequences of his plea. Defendant patently failed to make this "particularized showing" in his post-conviction relief proceeding.

Against this factual background, we find defendant's arguments on appeal to be "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).



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