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State v. Conover

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TROY CONOVER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 96-10-1294.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2008

Before Judges Coburn and Grall.

Defendant appeals from the denial of his petition for post-conviction relief. We affirm.

In 1998, pursuant to a plea agreement with the State, defendant pled guilty to first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), third degree burglary, N.J.S.A. 2C:18-2, and second degree sexual assault, N.J.S.A. 2C:14-2(c). The State agreed to a maximum prison sentence of nine years consecutive to any sentence defendant was then serving.

On October 5, 1998, defendant moved to withdraw his plea, which had been made during trial, on the grounds that he had lied when he gave the factual basis and that he was in fact innocent. The judge denied defendant's request and sentenced him to an aggregate nine-year prison sentence.*fn1

Defendant appealed, arguing that the sentence imposed was too long and that the trial judge erred in not permitting him to withdraw his guilty plea. The appeal was heard on June 22, 1999, and according to defendant, the judgment was affirmed.

However, a copy of the judgment has not been included in the record. In early 2004, which was more than five years after the sentencing, defendant filed the petition for post-conviction relief with which we are now concerned.

On appeal, defendant offers the following arguments:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING AS TO ALL HIS ARGUMENTS TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHICH RESULTED IN HIS UNKNOWING GUILTY PLEA.

C. APPELLANT'S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CHALLENGE THE TRIAL COURT'S DENIAL OF PETITIONER'S REQUEST FOR A PLEA RETRACTION.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Paley in his oral opinion of September 19, 2005. As to defendant's contention that his appellate counsel was ineffective in failing to challenge the denial of his request to withdraw the plea, we note that the transcript of the appellate argument, which was on a sentencing calendar, is quite to the contrary. The argument was made.

Affirmed.


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