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State v. McGowan


May 12, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2857.

Per curiam.


Submitted April 19, 2010

Before Judges Alvarez and Coburn.

Defendant appeals from a written opinion rejecting his arguments for post-conviction relief.

The indictment charged defendant with: first degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth degree possession of a knife, N.J.S.A. 2C:39-5(d); and third degree possession of a knife for unlawful purposes, N.J.S.A. 2C:39-4(d). A jury acquitted him on three of the charges, but found him guilty of the charge of second degree aggravated assault. The sentence imposed was an extended term of fifteen years imprisonment with eighty-five percent to be served without parole pursuant to the No Early Release Act.

On direct appeal, we affirmed. State v. McGowan, Docket No. A-4682-03T4 (App. Div. Nov. 18, 2005) (slip op.). The Supreme Court granted defendant's request for certification and summarily remanded the case to the trial court for resentencing under State v. Pierce, 188 N.J. 155 (2006), a decision rendered after our affirmance. State v. McGowan, 188 N.J. 266 (2006).

Defendant then filed the petition for post-conviction relief. At the conclusion of the hearing, the trial court rendered a written opinion commenting on the sentencing and denying defendant's claim that he was denied effective assistance of counsel.

Respecting the underlying facts, we incorporate the statement of facts contained in our earlier opinion. In this appeal, defendant contends that we should reverse the denial of his ineffective assistance of counsel claims because his trial attorney "failed to object to the prosecutor's inappropriate comments during opening statement" and further "failed to object" at the time of defendant's sentencing "to the double counting of an aggravating factor." He also contends that he was denied the effective assistance of counsel on his petition for post-conviction relief. Finally, he contends that the trial court improperly denied him an evidentiary hearing.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Regarding his claims about his trial attorney, we also affirm substantially for the reasons given by the trial court in its written opinion of February 26, 2008.

Defendant's contention respecting his original sentencing is moot. The Supreme Court remanded the case for "resentencing." Although the trial court discussed the subject in the opinion issued on February 26, it still has not carried out the Supreme Court's mandate, which requires resentencing. Thus, after our remand, defendant will have a full opportunity to address the factors relevant to his sentencing, after which the trial court shall resentence defendant pursuant to the order of the Supreme Court.

Although defendant claims that his post-conviction counsel was constitutionally inadequate for failing to present arguments that defendant had requested, the brief fails to identify those arguments, let alone explain why they are of constitutional dimension. The same is true with respect to the claim that defendant was improperly denied an evidentiary hearing. Consequently, we reject both of these points.

We note in passing that this case is not even properly before us. Apart from the trial court's failure to resentence defendant, as directed by the Supreme Court, we are confronted with a record that contains no order. The trial court's opinion of February 26 is not an order, it is an opinion. And its "CONCLUSION," which reads as follows does not make the opinion an order: "For the reasons stated above, Petitioner's Motion for Post Conviction Relief has been GRANTED as to Point One and DENIED as to Points Two and Three." Appeals may only be taken from judgments or orders. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).

Affirmed in part and remanded for resentencing.


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