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State v. Arthur

June 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYRONE ARTHUR, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-04-1195.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2008

Before Judges Payne and Messano.

Following jury selection and after his girlfriend-victim had testified against him in a pre-trial hearing, defendant Tyrone Arthur pled guilty, without a sentence recommendation, to charges of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), arising from two separate incidents: in the first, occurring on or about September 17, 2000, defendant punched his girlfriend during a fight, breaking several of her ribs; in the second, occurring on October 20, 2000 during another fight, he bit her nose and eyes, breaking her nose and causing her eyes to swell shut, he repeatedly stabbed her in the arm with a penknife and, while attempting to stab her in the head, he cut her left ear - all the while threatening her with death. At sentencing, the judge denied defendant's motion to retract his guilty plea as well as the State's motion for an extended term and sentenced defendant to nineteen years in custody, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also given a consecutive four-year sentence for a parole violation arising from the commission of the crimes to which he had pled. Upon appeal, we affirmed both defendant's conviction and sentence. State v. Arthur, No. A-4211-01T4 (App. Div. March 10, 2004). Certification was denied. State v. Arthur, 180 N.J. 453 (2004).

In a subsequent PCR petition, defendant argued that he had been offered a "twenty-four-month program" by unidentified Camden County homicide detectives in return for his cooperation in connection with a murder case against defendant's cellmate, Kevin Cook, that he had not received the promised sentence despite his cooperation, and that trial counsel was ineffective in not obtaining that sentence. Defendant also argued that, in violation of State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003), he had not been advised of the five-year period of parole supervision, as the result of NERA, applicable to his potential sentence for attempted murder, or that a violation of parole could result in service of a sentence longer than the base term. He claimed ineffectiveness by trial and appellate counsel in not raising that issue. The PCR petition was denied without a hearing.

On appeal, defendant again makes the same arguments, while also raising claims of ineffective assistance by PCR counsel. Through appellate counsel, defendant argues:

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND POST-CONVICTION RELIEF COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.

POINT II

THE COURT VIOLATED STATE V. FREUDENBERGER [358 N.J. SUPER. 162 (APP. DIV. 2003)] WHEN THE DEFENDANT WAS NOT INFORMED AT THE PLEA REGARDING THE NATURE OF PAROLE UNDER THE NO EARLY RELEASE ACT.

Defendant has also submitted a pro se brief in which he argues:

THE POST-CONVICTION COURT ERRED BY FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEREFORE, THE MATTER MUST BE REVERSED FOR AN EVIDENTIARY ...


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