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State ex rel J.W.

January 21, 2009

STATE OF NEW JERSEY IN THE INTEREST OF J.W., A MINOR.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, No. FJ-15-211-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2008

Before Judges Wefing and Parker.

J.W. appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In March 2003, J.W. was charged with nine counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). Although J.W. was thirty-one years of age, the charges were filed in Chancery Division, Family Part, because they related to conduct by J.W. with his cousin, E.W., commencing when he was eleven years old and she was eight years old. She did not report the abuse at the time, resulting in the delay in prosecution.

After the charges were filed, the State filed a motion to waive jurisdiction pursuant to Rule 5:22-2. Before this motion was acted upon, J.W. entered a negotiated plea of guilty to one count of first-degree aggravated sexual assault, and the State agreed to drop the remainder of the charges and to recommend a sentence of four years, the maximum term that could be imposed upon a juvenile. The trial court accepted J.W.'s plea, and in June 2004 the trial court sentenced J.W. to a four-year term of incarceration and imposed the appropriate fines and penalties. J.W. was also made subject to the requirements of Megan's Law. N.J.S.A. 2C:7-1 to -21.

Defendant appealed his sentence as excessive. It was affirmed. State in the Interest of J.W., No. A-2606-04 (App. Div. June 29, 2005).

Shortly after that affirmance, J.W. filed a petition for post-conviction relief. The trial court denied his petition after hearing argument from the attorneys. The trial court did not conduct a plenary hearing. He now appeals from the trial court order denying his petition. On appeal, he raises the following arguments:

POINT I

BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART I, ¶ 10) AND BECAUSE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS PETITION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE COURT SHOULD GRANT PETITIONER AN EVIDENTIARY HEARING ON THIS ISSUE.

A. COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO CHALLENGE THE PHYSICAL EXAM OF ALLEGED VICTIM AND WHEN HE FAILED TO APPLY TO ...


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