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State v. Diquez

October 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDUARDO J. DIQUEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-05-0760.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2008

Before Judges Cuff and Fisher.

In this appeal, defendant seeks our reversal of an order that denied his petition for post-conviction relief. Because we find no merit in defendant's claim that he was denied the effective assistance of counsel during the sentencing proceedings, we affirm.

Defendant was indicted and charged with the first-degree murder of Douglas Brown on May 3, 1998. The parties negotiated a plea agreement, which called for the State's amendment of the murder charge to aggravated manslaughter; in exchange for defendant's guilty plea to that reduced charge, the State agreed to recommend a prison term not to exceed twenty-five years.

On October 1, 1999, defendant pled guilty to aggravated manslaughter. Defendant acknowledged that, on May 3, 1998, he was given a ride by the victim from New Brunswick to the latter's apartment in Piscataway. Once there, both defendant and the victim engaged in consensual sex. Defendant eventually rebuffed the victim's further sexual advances, which prompted a fight and the victim's death by strangulation at the hands of defendant.

On January 3, 2000, defendant was sentenced to a twenty- year term, which was subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant's appeal was placed on a sentencing calendar and heard by this court on October 2, 2000. We affirmed by way of an order entered that same day. State v. Diquez, No. A-3346- 99T4 (App. Div. 2000).

Defendant filed a petition for post-conviction relief (PCR) on March 15, 2005. The PCR judge conducted an evidentiary hearing over the course of six days in the summer of 2006. On the last day of the hearing, defense counsel advised the court of the following:

Your Honor, at this juncture in the proceedings, I would like to make an amendment to the [PCR petition], and that amendment is that the defendant does not seek to overturn the conviction. He was convicted and he pled to . . . [an] aggravated manslaughter charge. He does not wish to contest the charge he pled to. However he does want this PCR petition to be directed towards the issue of sentencing, that there was ineffective assistance of counsel in the area of sentencing and particularly referencing the mitigating factors and that ineffective assistance of counsel prejudiced the client, and he requests to be resentenced, but does not request to vacate the guilty plea.

Defendant thus abandoned his request for relief from his guilty plea and thereafter pursued only his claim of the denial of the effective assistance of counsel in the preparation for and during the sentencing proceedings. For the reasons set forth in her written decision of August 15, 2006, the PCR judge denied relief.

Defendant appealed, raising the following single issue for our consideration:

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE 20 YEAR SENTENCE WITH A 85% NERA PERIOD OF PAROLE INELIGIBILITY VACATED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE DEFENDANT DID NOT ...


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