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State v. Tarpley

September 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARYL TARPLEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 04-11-0382.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Defendant Daryl Tarpley appeals from the March 9, 2007, order that denied his petition for post-conviction relief (PCR). He raises the following arguments on appeal:

POINT I

DEFENDANT'S POST-CONVICTION RELIEF REQUEST FOR A NEW SENTENCING SHOULD HAVE BEEN GRANTED BECAUSE HIS ATTORNEY WAS INEFFECTIVE.

A. COUNSEL WAS NOT REASONABLY COMPETENT WHEN HE ALLOWED THE COURT TO PUSH UP THE SENTENCING DATE IN THE FACE OF AN ERRONEOUS PRE-SENTENCE REPORT.

B. DEFENDANT WAS PREJUDICED AT SENTENCING BY THE COURT'S RELIANCE ON AN ERRONEOUS PRE-SENTENCE REPORT.

POINT II

AT THE VERY LEAST, AN EVIDENTIARY HEARING EXPLORING COUNSEL'S FAILURES AT SENTENCING WAS WARRANTED BECAUSE DEFFENDANT ALLEGED A PRIMA FACIE CASE OF INEFFECTIVENESS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

On February 28, 2005, pursuant to a plea agreement reached with the State, defendant pled guilty to various counts contained in three separate indictments. A sentencing date of April 12, 2005 was set. In the interim, defendant moved for a bail modification pending sentence based upon his mother's serious medical problems. On March 4, 2005, the judge considered the motion and denied it. However, because a presentence investigation (PSI) report had been expeditiously prepared and circulated, the prosecutor suggested that the court proceed with sentencing immediately.

Once the motion for a bail modification was denied, defense counsel, who earlier had characterized the prosecutor's suggestion as a "joint request for sentencing," specifically asked the judge to sentence defendant in accordance with the plea bargain. Defense counsel indicated that one of the entries in the pre-sentence report was ...


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