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State v. Dutch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROSS DUTCH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-0907.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 7, 2009

Before Judges Grall and Gilroy.

This is defendant Ross Dutch's appeal from a denial of post-conviction relief. Defendant pled guilty to second-degree eluding, N.J.S.A. 2C:29-2b, after reaching an agreement with the State encompassing sentencing and dismissal of remaining counts of the same indictment alleging first-degree carjacking, N.J.S.A. 2C:15-2a(2); second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4a; second-degree possession of a firearm as a person with a prior conviction for aggravated assault, N.J.S.A. 2C:39-7b(1); and fourth-degree aggravated assault based upon pointing a firearm at another, N.J.S.A. 2C:12-1b(4). The State also agreed to dismiss summonses charging violations of various motor vehicle laws during the course of the eluding.

The agreement on the sentence for second-degree eluding was for an extended term of fifteen years, pursuant to N.J.S.A. 2C:43-3a, and subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Thus, defendant would not be eligible for parole until he had served eighty-five percent of the fifteen-year term and would be required to serve a separate three-year term of parole supervision following his release. Acknowledging his prior convictions for robbery and aggravated assault, defendant stipulated to his eligibility for the extended term.

Defendant pled guilty on November 8, 2006, but on November 10, 2006, defendant's lawyer alerted him to the fact that the No Early Release Act was not applicable to eluding. On November 12, 2006, after researching the issue himself, defendant wrote to his attorney and expressed his "gratitude" for her efforts.

At the time of sentencing on January 5, 2007, the form of the plea agreement was amended to reflect a fifteen-year term, fifty percent of which would be served prior to eligibility for parole. Moreover, there would be no obligation to serve a term of parole supervision beyond the fifteen-year term. Stressing that defendant was not asking to withdraw his guilty plea, his attorney urged the judge to impose a sentence of fewer than fifteen years.

In a colloquy with defendant, the judge reviewed the terms of the amended agreement at length. Defendant, like his attorney, asked the court to impose a shorter sentence but did not ask to withdraw his plea.

The judge sentenced defendant in accordance with the amended agreement. In addition and in conformity with the agreement, the judge imposed the requisite fines, penalties and assessments and dismissed the other charges pending against defendant.

Defendant did not appeal, but on June 7, 2007, he filed a pro se petition for post-conviction relief. Assigned counsel submitted a formal petition asking the judge to vacate the plea or, in the alternative, reconsider defendant's sentence. For reasons stated in a letter opinion dated January 8, 2008, Judge Snyder denied the application.

On appeal from the order denying his petition, defendant argues:

I. THE COURT COMMITTED PLAIN ERROR PURSUANT TO R. 2:10-2, THAT WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT WHEN IT FOUND THAT THE DEFENDANT HAD NOT SUBMITTED A CERTIFICATION OR AFFIDAVIT IN SUPPORT OF HIS PETITION FOR POST CONVICTION RELIEF.

II. THE COURT ERRED BY DISPOSING OF THE DEFENDANT'S PETITION ON THE PAPERS AND BY FAILING TO ALLOW ORAL ARGUMENTS BEFORE A DETERMINATION BY THE COURT WAS REACHED.

III. THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

After review of the record, we are convinced that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons given by Judge Snyder.

Affirmed.

20090930

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