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State v. King

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON KING, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-98-03-1349.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2009

Before Judges Wefing and LeWinn.

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was indicted for murder, N.J.S.A. 2C:11-3a(1), (2); conspiracy to commit murder, N.J.S.A. 2C:5-2; attempted murder, N.J.S.A. 2C:5-1; aggravated assault, N.J.S.A. 2C:12-1b(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. In April 2000, defendant entered a negotiated plea of guilty to one count of aggravated manslaughter, as a lesser-included offense to murder, one count of aggravated assault and one count of unlawful possession of a weapon. According to the plea transcript, the State agreed to recommend that the trial court sentence defendant to twenty years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court, however, indicated to defendant that based upon its understanding of the circumstances, defendant's sentence would likely be fifteen years in prison, subject to NERA. That is, in fact, the sentence the trial court imposed upon defendant on May 8, 2000, for aggravated manslaughter; the remaining terms were concurrent.

Defendant appealed, contending that this sentence was excessive. Defendant's appeal was heard on an ESOA calendar, and his argument was rejected. By order dated February 6, 2002, we affirmed defendant's sentence but remanded the matter to the trial court for entry of a corrected judgment of conviction.

State v. King, A-5263-00T4. The Supreme Court denied defendant's petition for certification. State v. King, 172 N.J. 181 (2002).

In February 2007, nearly seven years after defendant was sentenced, he filed a petition for post-conviction relief in which he challenged his sentence because the offense occurred prior to the 2001 amendment to the NERA statute. After hearing oral argument, the trial court denied defendant's petition. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE 15 YEAR SENTENCE IMPOSED ON THE DEFENDANT'S PLEA TO AGGRAVATED MANSLAUGHTER ON COUNT TWO WAS ILLEGAL

(A)

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE TRIAL JUDGE'S REPRESENTATIONS AT THE TIME THE PLEA WAS ACCEPTED MADE THE MAXIMUM SENTENCE AS AUTHORIZED BY THE PLEA 15 YEARS, NOT 20 YEARS

(B)

THE COURT APPLIED AN IMPROPER CIVIL RES IPSA LOQUITOR (sic) STANDARD BY INFERRING THAT THE TRIAL JUDGE CONSIDERED THE NERA PERIOD OF PAROLE INELIGIBILITY IN IMPOSING SENTENCE POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION UNDER THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH I OF THE NEW JERSEY CONSTITUTION POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF POINT IV PCR COUNSEL'S FAILURE TO PREPARE A BRIEF WARRANTS REVERSAL UNDER STATE V. RUE AND STATE V. WEBSTER

Defendant's argument that his sentence was illegal is designed to avoid the five-year limitations period to file a PCR petition. R. 3:22-12(a). His argument, however, is not persuasive. It rests entirely upon his assertion that the trial court failed to take into account the real-time consequences of a sentence imposed under NERA and that this ran afoul of State v. Marinez, 370 N.J. Super. 49 (App. Div.), certif. denied, 182 N.J. 142 (2004). In our judgment, defendant's argument misreads Marinez (decided nearly four years after defendant was sentenced), ignores the fact that this court has already affirmed his sentence, and disregards the overall tenor of the sentencing transcript.

Defendant's remaining arguments do not warrant extended discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2). We comment briefly, however, upon defendant's final argument, that the matter should be reversed because the attorney assigned to represent defendant in connection with his PCR petition did not prepare and submit a written brief on defendant's behalf. We do not find it necessary to analyze in depth the extent of the responsibilities that rest upon an attorney representing a client seeking PCR. Even were we to conclude that in all instances, as a matter of law, submission of a written brief is required, we would decline to reverse and remand this matter for further proceedings. Defendant has had the benefit of counsel on appeal who has submitted an extensive written brief on his behalf. He has thus had the opportunity to have all the legal issues which he wished to raise brought before a court for determination. That defendant has been unsuccessful is not a reflection on counsel, either at the trial level or on appeal. It is simply that defendant is not entitled to the relief he seeks.

Affirmed.

20091217

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