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State v. Shearn

March 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LOUIS R. SHEARN, JR. DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 00-02-0165.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 24, 2009

Before Judges Gilroy and Chambers.

Defendant Louis R. Shearn, Jr., appeals from the order of June 26, 2007, denying his post-conviction relief application. The appeal is unopposed.*fn1

Defendant was charged with first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); first degree robbery, N.J.S.A. 2C:15-1; first degree car jacking, N.J.S.A. 2C:15-2(a)(1); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third degree theft, N.J.S.A. 2C:20-3.

On August 15, 2000, pursuant to a plea agreement, defendant pled guilty to the attempted murder charge, with the understanding that the balance of the charges would be dismissed, another indictment for unrelated charges would also be dismissed, the sentence would run concurrently with a sentence he was then serving, and his custodial sentence would not exceed seventeen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant thereafter moved to withdraw that plea, and the motion was granted on April 25, 2001.

On June 11, 2001, defendant pled guilty a second time to the attempted murder charge pursuant to an identical plea agreement. His subsequent motion to withdraw this second plea was denied.

On July 2, 2001, the trial court sentenced defendant pursuant to the plea agreement to seventeen years in state prison for attempted murder, subject to an eighty-five percent period of parole ineligibility, and to five years of parole supervision upon release. The sentence was to run concurrent with the sentence defendant was then serving. Defendant received credits of 162 days for time served and 520 days for gap time.*fn2 The trial court imposed the mandatory penalties and assessments. The remaining counts in the indictment and the unrelated indictment were dismissed.

On direct appeal, we affirmed the conviction. State v. Shearn, No. A-1355-01 (App. Div. May 15, 2003). Defendant then filed a petition for post-conviction relief which was denied by the trial court on June 26, 2007. Defendant now appeals that decision, raising the following issues:

POINT ONE THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST- CONVICTION RELIEF.

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.

C. DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF AS HIS ATTORNEY IMPROPERLY ADVISED HIM AS TO THE CONSEQUENCES OF HIS PLEA BY TELLING DEFENDANT HE WOULD ...


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