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State v. Dunlap

November 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
QUAN DUNLAP, A/K/A SAIHEED DUNLAP AND QUAN D. DUNLAP, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1300.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2008

Before Judges Cuff and Baxter.

Defendant Quan Dunlap appeals from a December 11, 2006 order that denied his petition for post-conviction relief (PCR). We affirm.

I.

On January 26, 2004, following the entry of a negotiated plea of guilty, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and sentenced to a seven-year term of imprisonment, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On that same day, defendant was sentenced to a concurrent term of five years of imprisonment on a charge of third-degree absconding from parole. The two sentences were ordered to be served concurrently.

After sentencing, defendant filed an appeal that was placed on the excessive sentence oral argument (ESOA) calendar. On October 18, 2005, we affirmed defendant's sentence. Thereafter, defendant filed the PCR petition that is the subject of this appeal. He asserted before the Law Division that he was entitled to post-conviction relief because trial counsel provided ineffective assistance of counsel by: 1) failing to adequately explain the plea offer; 2) failing to provide him with a copy of the discovery or review that discovery with him before he entered a plea of guilty; 3) pressuring him into pleading guilty; and 4) misstating his arguments during the ESOA proceeding.

At the December 4, 2006 hearing on the petition, both sides rested on the claims advanced in their respective briefs and did not request oral argument. In an oral opinion, Judge Theemling concluded that defendant failed to present a prima facie case of ineffective assistance of counsel and, accordingly, no evidentiary hearing was required.

In particular, the judge remarked that even if trial counsel failed to provide defendant with discovery, "[t]wo witnesses and the proceeds of the robbery being found on the defendant is sufficient to show there was no prejudice to [him] . . . . The overwhelming evidence against him was extremely strong." As to defendant's claim that trial counsel failed to accurately present defendant's claims during the ESOA hearing, the judge concluded that such contention was not sufficient to constitute ineffective assistance of counsel because defendant failed to establish that the outcome would have been different were it not for the alleged misstatement. Finally, Judge Theemling rejected the claim that trial counsel pressured defendant to accept a plea he would otherwise have rejected. The judge pointed to defendant's sworn statement on the record at the time of the plea that no one had forced him or coerced him to plead guilty and that his attorney had reviewed the plea form with him and answered any of his questions. Consequently, Judge Theemling denied defendant's PCR petition in its entirety.

On appeal, defendant raises the following claims:

I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

A. The defendant was denied the effective assistance of counsel by his post-conviction relief attorney in violation of the New Jersey and United States Constitutions.

B. The post-conviction relief attorney failed to argue or demonstrate how defense counsel did not properly explain the plea agreement to the defendant or how the ...


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