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State v. McNeil

December 10, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERMAINE MCNEIL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-11-0371.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2009

Before Judges Grall and Messano.

Defendant Jermaine McNeil appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points for our consideration:

POINT I IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.

POINT II THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

Defendant pled guilty to aggravated manslaughter and unlawful possession of a handgun in the July 26, 2003 slaying of his brother, Terrence. A third brother, Ronald, witnessed the shooting, after which defendant "ma[d]e arrangements to leave the state" to avoid apprehension.

Apparently after a jury was selected, but before the trial commenced, defendant entered a guilty plea. Pursuant to the plea bargain, defendant was to receive concurrent sentences with a maximum exposure of fifteen years imprisonment, and an 85% period of parole ineligibility. See N.J.S.A. 2C:43-7.2. The judge imposed sentence in accordance with the plea bargain.

Defendant's direct appeal was limited solely to the alleged excessive nature of his sentence. We affirmed the sentence. State v. Jermaine McNeil, No. A-1574-05 (November 15, 2006). His petition for certification to the Supreme Court was denied. 190 N.J. 254 (2007).

Defendant filed a petition for PCR. Defendant's brief does not set forth the date of the filing, nor does his appendix include a copy of the petition. The appendix does include several pages listed simply as "Statements from Defendant" that are accompanied by "Previous Exhibit" references, and a document entitled "List from Defendant" that is characterized as "Itemizing omissions of defense Counsel." We assume these items were exhibits to the PCR petition and were before the PCR judge, the same judge that had taken defendant's guilty plea and imposed sentence.

We therefore glean from the transcript of the hearing, held on January 18, 2008, that defendant's PCR claim was that defense counsel provided ineffective assistance. We quote at length the arguments raised by PCR counsel at the time:

My client is just arguing that his plea was not knowingly and voluntarily given. He felt that we [sic] was forced to plea [sic] guilty. I believe, during his plea hearing, he admitted that he was not satisfied, or didn't have sufficient time to speak with his ...


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