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State v. Welch

August 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW WELCH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-04-0438.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 21, 2008

Before Judges Graves and Yannotti.

Defendant Andrew Welch appeals from an order entered on September 21, 2006, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged under Ocean County Indictment No. 03-04-0438 with robbery, second degree, N.J.S.A. 2C:15-1 (count one); robbery, second degree, N.J.S.A. 2C:15-1 (count two); eluding, second degree N.J.S.A. 2C:29-2b (count three); and resisting arrest, third degree N.J.S.A. 2C:29-2a (count four). On June 2, 2003, defendant pled guilty to counts one, two and three of the indictment. The State agreed to the dismissal of count four and certain other charges that were pending at the time.

At the plea hearing, the assistant prosecutor informed the court that the State would be seeking "a total sentence of [seventeen] years imprisonment, [ten] years concurrent on the robbery with a consecutive seven on the eluding." The assistant prosecutor stated that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to the robbery counts. The assistant prosecutor also stated that defendant had reserved the right to seek concurrent sentences on all charges and would be asking the court to impose an eight-year term, "subject to the 85 per cent law."

Defendant was asked whether he signed the supplemental plea form for NERA cases and admitted that he had. He was asked whether the answers to the questions on that form were his answers. He said that they were his answers. Defendant also said that he understood the questions.

Defendant was sentenced on June 25, 2003. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

The judge sentenced defendant to an eight-year term on count one, with a period of parole ineligibility as prescribed by NERA. The judge imposed the same sentence on count two, and ordered that it be served concurrent to the sentence on count one. The judge imposed a concurrent eight-year sentence on count three. The judge also imposed appropriate fees and assessments, and ordered the suspension of defendant's driving privileges for one year.

Defendant did not file a notice of appeal from the judgment of conviction entered on July 25, 2003. However, defendant filed a motion dated January 25, 2005, to correct what he claimed was an illegal sentence. Defendant argued that the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), rendered his sentence illegal because the aggravating factors relied upon by the judge were not proven to a jury. The trial court denied the motion on April 15, 2005. Defendant did not appeal from that determination.

On September 26, 2005, defendant filed a pro se verified petition for PCR. PCR counsel was assigned and defendant filed an amended PCR petition on May 15, 2006. The trial court considered the petition on September 15, 2006.

At the hearing on the PCR petition, the judge noted that the sentences imposed were the sentences defendant had requested. The judge asked whether defendant was seeking to withdraw from his plea and have the matter returned to the trial calendar. The judge noted that defendant could be potentially exposed to a sentence of up to seventeen years of incarceration. In response, defendant stated:

First of all, I would definitely not like to vacate my original sentence. I guess I was under the misconception of the purpose of a [petition for post-conviction] relief. There [is] no way I'm looking to vacate [the sentence] and turn that over to a trial date for resentencing. That . . . is not what I ...


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