May 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL A. FORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-04-0723.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2010
Before Judges Carchman and Ashrafi.
Defendant appeals from an order denying his petition for post-conviction relief (PCR) under Rule 3:22. We dismiss the appeal as moot.
On July 3, 2007, defendant entered a plea of guilty to third-degree burglary, N.J.S.A. 2C:18-2. Pursuant to his plea agreement with the State, defendant was sentenced to four years' imprisonment with sixteen months before parole eligibility, to be served concurrently with a sentence of three years flat on a separate accusation based on an earlier offense. In addition, defendant was ordered to pay restitution of $7.55 and other routine money penalties mandated by statute. No fine was imposed. Defendant paid the restitution at the time of his sentencing.
Defendant filed a petition for PCR in April 2008 in which he challenged the effectiveness of his attorney with respect to the sentencing proceeding and requested that his sentence be modified to time served. The trial court denied the petition by oral decision and order dated October 15, 2008. Defendant filed a timely notice of appeal.
On appeal, defendant argues:
POINT I THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; TRIAL-LEVEL COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.
A. TRIAL-LEVEL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ARGUE ANY MITIGATING FACTORS AT SENTENCING.
B. THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING WHEN HIS ATTORNEY DID NOT OPPOSE THE APPLICATION OF AGGRAVATING FACTOR (6), EXTENT AND SERIOUS- NESS OF DEFENDANT'S PRIOR RECORD. DEFENDANT'S POST-CONVICTION RELIEF MOTION ATTORNEY WAS INEFFECTIVE IN NOT RAISING THIS ISSUE.
C. THE DEFENDANT-APPELLANT WAS ENTITLED TO AN EVIDENTIARY HEARING. POINT II THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE MOTION FOR POST-CONVICTION RELIEF.
Defendant's brief states that he was released from prison on approximately September 4, 2009. Defense counsel subsequently informed the Clerk of the court that defendant had completed service of his sentence at the time he was released from prison and was not discharged to parole.
The appeal is moot and will be dismissed because defendant's arguments on appeal pertain only to the sentence of imprisonment, defendant does not challenge any other terms of his sentence, and he has completed service of his sentence. We note that it would have been appropriate for counsel to have alerted the court that the appeal is moot.
For completeness, we also conclude, based on our review of the record on appeal, that defendant's PCR petition was correctly denied for the reasons stated in the oral decision of Judge Donald R. Venezia given in open court on October 15, 2008.
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