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State v. Milbourne

May 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN MILBOURNE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1628.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Wefing and Parker.

Defendant Steven Milbourne appeals from an order entered on February 22, 2006 denying his petition for post-conviction relief (PCR). We affirm.

Pursuant to a negotiated plea agreement, defendant pled guilty on August 27, 2001 to first degree armed robbery, N.J.S.A. 2C:15-1; and fourth degree resisting arrest, N.J.S.A. 2C:29-2. On November 16, 2001, he was sentenced to an aggregate term of eleven years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On January 8, 2003, we affirmed after the matter was argued on the Sentence Only Argument (SOA) calendar.

In an amended verified PCR petition dated August 11, 2005, defendant claimed that trial counsel was ineffective because he (1) coerced defendant into pleading guilty by telling him he would receive a life sentence if he did not; (2) failed to provide defendant with discovery so he might have assisted in the preparation of his own defense; and (3) failed to move to dismiss the indictment when the prosecutor requested to amend the first count to remove a first degree murder charge. Defendant also claimed that appellate counsel was ineffective by failing to remove the appeal from the SOA calendar and place it on a plenary calendar. Finally, defendant claimed that his sentence was illegal under State v. Natale, 184 N.J. 458 (2005).

After hearing argument, the PCR court addressed the Natale issue first. The court correctly found that because defendant was sentenced to a term lower than the presumptive or mid-range term, Natale does not apply.

With respect to defendant's claim that he was coerced into pleading guilty, the PCR court noted that the transcript of the plea colloquy clearly demonstrates that the defendant was represented by competent counsel; the defendant understood the terms of the plea agreement; the plea colloquy; and the State clearly articulated the terms and conditions of the plea, and the Court thereafter addressed counsel for the defendant who advised that he had an opportunity to go through all of the questions individually on the plea form with the defendant.

During the plea colloquy, defendant was also asked by the court if he understood the charges and the consequences of the plea and defendant responded affirmatively. The court explained the NERA aspect of sentencing and defendant acknowledged that he had read and understood the contents of the forms setting out those terms of the agreement. The PCR court further noted that defendant testified he had reviewed the plea form with counsel and that he answered all of the questions freely and voluntarily. Moreover, after he was sentenced, defendant sent a letter to the sentencing judge acknowledging his guilt and apologizing to the victim. Based upon that letter, as well as the plea colloquy, the PCR court concluded that defendant was not coerced into pleading guilty.

With respect to defendant's claim that counsel should have moved to dismiss the indictment when the State amended it, the PCR court indicated that the amendment was to address a clerical error and not the substance of the indictment or the presentation to the Grand Jury. Consequently, there was no basis for a motion to dismiss the indictment.

With respect to defendant's claims that counsel failed to investigate and provide him with discovery, the PCR court noted that defendant made no proffer that the investigatory material would have yielded evidence demonstrating that defendant was not guilty. The PCR court commented that defendant was sending letters saying, "I did it, I'm wrong, and now he wants counsel to find some way to find that he's not guilty."

In this appeal, defendant ...


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