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State v. Watts

May 14, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EVERTON WATTS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-02-00239.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2008

Before Judges Lintner and Alvarez.

This is an appeal from the denial of defendant Everton Watts' petition for post-conviction relief (PCR) without evidentiary hearing. R. 3:22. For the reasons that follow, we affirm.

On June 30, 1998, defendant entered guilty pleas to first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); three fourth-degree aggravated assaults, N.J.S.A. 2C:12-1(b)(4) (counts five, six, and nine); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count twelve); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fifteen); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count eighteen); and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(d) (count twenty). The agreement called for a maximum aggregate sentence of twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 27, 1998, defendant was sentenced to an aggregate fifteen years, subject to NERA. On July 24, 2002, defendant's sentence was affirmed pursuant to Rule 2:9-11, except for a remand as to the merger of counts and the dismissal of count twenty-one. Defendant filed a pro se appeal of that decision to the Supreme Court, which appeal was denied. State v. Watts, 175 N.J. 429 (2003).

On May 24, 2005, nearly seven years after the imposition of sentence, defendant pro se filed the petition for PCR at issue on this appeal. Thereafter, counsel was assigned. Defendant later retained private counsel, and the petition was considered on March 20, 2006.

The court denied PCR based on the only issue raised before it, that the plea should be vacated because defendant claimed trial counsel did not explain that he would be subject to five years of parole supervision upon completion of his prison term. The argument can be loosely characterized as coming within the rubric of ineffective assistance of counsel. The court concluded that because the plea agreement was for a maximum term of twenty years, and defendant was sentenced to only fifteen years, the omission of any on-the-record discussion about parole supervision was not error. In other words, the court found that because defendant agreed to serve five more years of imprisonment than were imposed, the omission was of no moment because parole supervision is far less onerous than incarceration.

When the plea was accepted in 1998, the court thoroughly reviewed with defendant the voluntary, knowing, and intelligent decision he was making to forego his right to trial. The plea form defendant signed included an additional page titled "Supplemental Plea Form for No Early Release Act Cases," which specified that defendant would serve a five-year term of parole supervision. Defendant, and the attorneys who negotiated the plea, signed the form.

In defendant's brief, the following points are raised:

POINT I

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST CONVICTION RELIEF PROCEEDING DUE TO COUNSEL FAILING TO ARGUE THE ISSUES RAISED BY THE DEFENDANT IN HIS PETITION

POINT II

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE AT THE POST CONVICTION RELIEF PROCEEDING DUE TO COUNSEL FAILING TO ARGUE THAT THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL DUE TO APPELLATE COUNSEL FAILING TO RAISE THE ISSUE ...


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