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State v. Tenaglia

June 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH A. TENAGLIA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0534.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 17, 2010

Before Judges Rodríguez and Yannotti.

Defendant Joseph A. Tenaglia appeals from an order entered by the Law Division on September 16, 2009, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with second degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (counts two, three, four and five); and fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count six). On July 18, 2005, defendant pled guilty to count one and count two, which was amended to attempted aggravated assault.

The plea agreement provided that the State would waive the imposition of an extended term and defendant could be subject to a term of ten years for eluding and one and one-half years for attempted aggravated assault. The sentence to be imposed would be in the discretion of the court, as would the determination of whether the sentences would be consecutive or concurrent to each other and another sentence defendant was then serving.

Defendant was sentenced on November 18, 2005. The court sentenced defendant to ten years of incarceration on count one, with a five-year period of parole ineligibility; and a concurrent eighteen-month term on count two. The sentences were consecutive to a sentence defendant was then serving. Defendant filed an appeal from the judgment of conviction dated November 18, 2005, and the appeal was heard on our excessive sentence calendar. We affirmed defendant's sentence. State v. Tenaglia, No. A-2844-05 (App. Div. Aug. 23, 2006).

Defendant then filed a petition for PCR. Defendant alleged that he had been denied the effective assistance of counsel and sought an evidentiary hearing on his petition. On August 26, 2009, the court heard arguments on the petition and on September 16, 2009, placed its decision on the record. The court concluded that defendant had not been denied the effective assistance of counsel. The court memorialized its decision in an order dated September 16, 2009. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I.

THE PCR COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS ALLEGATIONS THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHO MISINFORMED HIM AS TO THE PENAL CONSEQUENCES OF HIS PLEA

Having reviewed the record in this matter, we are convinced that these arguments are entirely without merit. We accordingly affirm the order denying PCR substantially for the reasons stated by Judge Den Uyl in his decision from the bench on September 16, 2009. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his claim that he was denied the effective assistance of counsel when he entered his plea. Defendant alleges that, before he entered his plea on July 18, 2005, his attorney advised him that he needed to take the plea offer that day because the law might change soon. Defendant says that his attorney told him that, if he took the plea offer, he ...


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