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State v. Wester

April 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL WESTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-01-00062.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Wefing, Parker and LeWinn.

Defendant Michael Wester appeals from an order entered on January 2, 2007 denying his petition for post-conviction relief (PCR). We affirm.

A judgment of conviction was entered on March 28, 2002 after a jury found defendant guilty of first degree murder, N.J.S.A. 2C:11-3, for killing his wife in 1998. He was sentenced to a term of life subject to thirty years parole ineligibility.

On April 26, 2004, we affirmed on direct appeal. The Supreme Court denied certification on September 10, 2004, State v. Wester, 181 N.J. 546 (2004), and defendant filed his PCR petition on October 2, 2004.

I.

At a pre-trial conference on November 9, 2001, defendant was offered a plea agreement for aggravated manslaughter which would have resulted in a sentence capped at twenty years subject to seventeen years parole ineligibility. His attorney stated on the record that defendant "vehemently rejected" this offer. Defendant elected to proceed to trial, maintaining his innocence throughout. Defendant now claims he was so heavily medicated at the time of the pre-trial conference that he could not understand the plea offer. He contends that he would have accepted the plea offer if he had been of clear mind.

In his PCR petition, he claimed that he was denied effective assistance of counsel because (1) his trial attorney did not convey the plea bargain to him effectively and did not raise a psychiatric defense; and (2) his appellate attorney did not raise the issue of his unshaven and unkempt appearance before the jury on appeal.

The PCR court found that defendant was essentially playing "Monday morning quarterback," trying to undo with the benefit of hindsight his decision to reject the plea offer and go to trial. The court found defendant's claims to be a "fabrication" clearly inconsistent with the well-established record in the case and denied his petition.

In this appeal, defendant argues:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL.

A. Trial Counsel Was Constitutionally Deficient For Failing To Determine The Inability Of Defendant To Understand The Plea Offer.

B. Trial Counsel Was Constitutionally Deficient For Failing To Investigate A Psychiatric/Diminished Capacity Defense Due ...


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