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State v. Chester

April 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WAYMON CHESTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Nos. I-01-05-2155 and I-01-10-4261.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 10, 2009

Before Judges Wefing and Parker.

Defendant 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.

Two indictments were returned against defendant. Indictment 01-05-2155 charged defendant with fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3); third-degree possession of a controlled dangerous substance with intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a controlled dangerous substance with intent to distribute within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant was tried to a jury, which found him guilty on the drug charges as charged and guilty of fourth-degree resisting arrest as a lesser-included offense of third-degree resisting arrest. At sentencing, the trial court merged all of the narcotics offenses into the second-degree charge of possession within five hundred feet of a public housing facility and sentenced defendant to ten years in prison, with a three-year period of parole ineligibility. It also sentenced defendant to a concurrent five years in prison for resisting arrest. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded the matter for re-sentencing in light of the concededly improper sentence for fourth-degree resisting arrest. State v. Chester, No. A-6646-02 (App. Div. Oct. 27, 2005). The Supreme Court denied certification. State v. Chester, 186 N.J. 242 (2006).

Defendant was charged in Indictment 01-10-4261 with second-degree conspiracy, N.J.S.A. 2C:5-2; first-degree carjacking, N.J.S.A. 2C:15-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

Following a trial court order severing the conspiracy and carjacking counts, defendant was tried on the remaining counts in the indictment and convicted on all counts. He was then tried for conspiracy and carjacking. He was acquitted of conspiracy and convicted of carjacking. The trial court sentenced defendant on Indictment 01-10-4261 on the same day it sentenced him under Indictment 01-05-2155. It structured defendant's sentence on Indictment 01-10-4261 to achieve its stated purpose of having defendant serve a combined aggregate sixty-five years in prison, with a forty-five-year period of parole ineligibility under both indictments. Defendant filed separate notices of appeal with respect to his carjacking conviction and the balance of his convictions. We affirmed defendant's conviction and sentence for carjacking. State v. Chester, No. A-6760-03 (App. Div. Oct. 27, 2005). We also affirmed his remaining convictions but remanded one aspect of defendant's sentence. State v. Chester, No. A-6761-03 (App. Div. Oct. 27, 2005). The Supreme Court denied his petitions for certification with respect to both. State v. Chester, 186 N.J. 242 (2006).

Defendant filed a timely petition for post-conviction relief. After reviewing defendant's brief and hearing oral argument, the trial court denied defendant's petition, and this appeal followed. On appeal, defendant raises the following issues for our consideration:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL

A. Indictment No. 2001-5-2155

B. Indictment No. 2001-10-4261 (Counts One Through Seventeen)

C. Indictment No. 2001-10-4261 (Count Two)

D. Indictment No. 2001-10-4261 (Counts One, Three ...


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