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State v. Durham

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VICTOR DURHAM, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-11-2141-D, 02-11-2432-D, 02-12-2529-D and 02-12-2566-D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 29, 2010

Before Judges Stern and Skillman.

Defendant was charged in six separate indictments with seventy-seven criminal offenses, including ten counts for armed robberies committed on three separate dates. When these indictments were returned, defendant was eligible to be sentenced to an extended term as a persistent offender.

Defendant entered into a plea bargain under which he agreed to plead guilty to two of the armed robberies, in violation of N.J.S.A. 2C:15-1, and to two counts of third-degree criminal mischief, in violation of N.J.S.A. 2C:17-3(a)(1), and one count of third-degree witness tampering, in violation of N.J.S.A. 2C:28-5(a), and the State agreed to dismiss the remaining charges and to recommend that defendant be sentenced to concurrent terms of not more than seventeen years, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the two armed robberies, and to terms of not more than five years, with not more than two years of parole ineligibility, for the three third-degree offenses, to be served concurrently with each other, but preserving the court's discretion to make those sentences consecutive to the sentences for the armed robberies. The trial court sentenced defendant in accordance with the plea agreement to concurrent seventeen-year terms of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, for the two armed robberies, and five-year terms of imprisonment, with two-year periods of parole ineligibility, for the three third-degree offenses, to be served concurrently with each other but consecutive to the sentences for the armed robberies.

On defendant's direct appeal, which we heard on an excess sentence calendar, see R. 2:9-11, we affirmed defendant's sentence. State v. Durham, No. A-3122-03T4 (Oct. 25, 2004).

Defendant filed a petition for post-conviction relief based on alleged ineffective assistance of his trial counsel. The trial court denied defendant's petition by an oral opinion delivered on January 16, 2009.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT ONE:

AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER THE DEFENDANT'S TRIAL ATTORNEY ADVISED THE DEFENDANT OF THE CONSEQUENCES OF WAIVING HIS RIGHT TO SEVERANCE SO THAT HE COULD WITH COMPLETE UNDERSTANDING ENTER A GUILTY PLEA.

POINT TWO:

THE DEFENDANT DID NOT RECEIVE FROM HIS TRIAL ATTORNEY EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENDANT'S TRIAL ATTORNEY DID NOT PROVIDE A MEANINGFUL ARGUMENT AT SENTENCING.

We reject defendant's arguments and affirm the denial of his petition substantially for the reasons set forth in Judge Donio's January 16, 2009 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2); see Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985).

Affirmed.

20100809

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