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State v. Kell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PRESTON KELL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-11-0191.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2010

Before Judges Skillman and Simonelli.

Defendant pled guilty pursuant to a plea bargain to second-degree attempted sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(4), and third-degree luring or enticing a child, in violation of N.J.S.A. 2C:13-6. Before sentencing, defendant filed a motion to withdraw his guilty plea. After a hearing, the trial court denied defendant's motion. The court then sentenced defendant to a seven-year term of imprisonment for attempted sexual assault and a concurrent four-year term of imprisonment for luring or enticing a child. The court ordered defendant to serve this sentence at the Adult Diagnostic and Treatment Center.

Defendant appealed from the denial of his motion to withdraw his guilty plea. In an unreported opinion, we rejected defendant's arguments that his guilty plea was not knowing and voluntary and that he received ineffective assistance of trial counsel, and affirmed his convictions. State v. Kell, No. A-5047-04T4 (July 21, 2006). The Supreme Court denied defendant's petition for certification. 189 N.J. 427 (2007).

Thereafter, defendant filed a petition for post-conviction relief based primarily on allegations of ineffective assistance of trial and appellate counsel. The trial court denied the petition by a written opinion dated July 3, 2008.*fn1

On appeal, defendant's sole argument is that the trial court erred in denying his petition without conducting an evidentiary hearing. Defendant's argument is clearly without merit. R. 2:11-3(e)(2). We only note that many of defendant's claims of ineffective assistance of trial counsel were explored on the record at the hearing on his motion to withdraw his guilty plea and in our prior opinion affirming the denial of that motion.

Affirmed.


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