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State v. Walker

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OZZIE Z. WALKER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 99-06-0484.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 3, 2010

Before Judges Graves and Yannotti.

Defendant Ozzie Walker appeals from an order entered on January 26, 2009, denying his petition for post-conviction relief (PCR). We affirm.

More than eleven years ago, on June 17, 1999, defendant pled guilty to third-degree possession of a controlled dangerous substance (cocaine), in violation of N.J.S.A. 2C:35-10(a)(1).

Pursuant to a negotiated plea agreement, the State agreed to dismiss other charges and to recommend that defendant be sentenced to probation with up to 364 days in the Hudson County Jail.

During the plea hearing, defendant confirmed he reviewed the plea form with his attorney, his attorney explained everything on the form to him, and he was satisfied with the legal services his attorney provided. Defendant also testified as follows:

THE COURT: When you plead guilty, you give up rights under the Constitution, including the right to remain silent because you'll have to tell me what you did if you want me to take your plea.

You give up the right to a trial by jury. At a trial by jury, 12 citizens would be selected by the lawyers to hear the case, and the Prosecutor would have to convince each of the 12 that you were guilty beyond a reasonable doubt before you could be found guilty.

Any witnesses brought by the State to testify against you could be cross-examined by your lawyer, and you could bring in witnesses to testify in your behalf. There are rights you have under the Constitution that you give up when you plead guilty.

Do you wish to give up these rights and plead guilty?

THE DEFENDANT: Yes.

THE COURT: Did anybody force you or threaten you into pleading guilty?

THE DEFENDANT: No.

THE COURT: Are you pleading guilty voluntarily and because you are guilty?

THE DEFENDANT: Yes.

The court then asked: "What did you do to make you guilty?" and defendant replied, "I was buying some cocaine off a dealer, and the officer saw me. I ran. I got caught." Defendant also admitted he had cocaine in his possession and "knew it was cocaine."

On August 27, 1999, the court sentenced defendant in accordance with the plea agreement to a three-year probationary term. On June 11, 2008, more than eight years after he was sentenced, defendant filed a PCR petition seeking to withdraw his guilty plea because the "plea was not freely and voluntarily entered," and there was no "factual basis for the plea." In addition, defendant claimed he was "deprived of his Sixth Amendment right to effective assistance of counsel."

After hearing oral argument on January 22, 2009, the PCR court denied defendant's petition without an evidentiary hearing. The court ruled that defendant's PCR petition was time-barred because it was not filed within five years of the entry of his judgment of conviction, Rule 3:22-12, and defendant failed to show relaxation of the time bar was required because his delay was due to "excusable neglect" or because the "interests of justice" demanded such relaxation. State v. Goodwin, 173 N.J. 583, 594-95 (2002). Nevertheless, the court considered the merits of defendant's petition and concluded that defendant's claims were "without substance." On his appeal to this court, defendant presents the following arguments:

POINT I

THE DEFENDANT-APPELLANT'S PCR MOTION WAS FILED OUT OF TIME DUE TO EXCUSABLE NEGLECT. THEREFORE, THE COURT ERRED IN DENYING THE DEFENDANT-APPELLANT'S PCR PETITION AS TIME-BARRED.

A. DEFENDANT-APPELLANT'S COUNSEL WAS INEFFECTIVE. THEREFORE, DEFENDANT-[APPELLANT] MUST BE PERMITTED TO RETRACT HIS GUILTY PLEA OUT OF TIME.

B. THE DEFENDANT-APPELLANT'S GUILTY PLEA WAS NOT ENTERED INTO FREELY AND VOLUNTARILY. ACCORDINGLY, THE COURT ERRED IN NOT PERMITTING THE DEFENDANT-APPELLANT TO RETRACT HIS GUILTY PLEA.

We reject these arguments and affirm the denial of defendant's petition to withdraw the plea he entered on June 17, 1999, substantially for the reasons stated by Judge Kenny in her oral decision on January 22, 2009. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that the Supreme Court's opinion in State v. Slater, 198 N.J. 145 (2009), provides additional support for the denial of defendant's petition.

Affirmed.

20100819

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