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State v. Zimmerman

November 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON ZIMMERMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-02-0387, 00-02-0397 and 00-09-2404.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Carchman, Graves and Messano.

Defendant Leon Zimmerman appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).

In his PCR, defendant claimed ineffective assistance of counsel because of the failure of counsel to advise him regarding the issue of jail credits. The judge determined that the PCR raised issues that were properly the subject of a direct appeal and further, that the PCR was untimely. We affirm and also conclude that based on the record before us, defendant was not entitled to the claimed jail credits as a matter of law.

The relevant facts are simply stated. On September 6, 1999, defendant committed an armed robbery while using a knife. Eleven days later, on September 17, 1999, defendant, brandishing a knife, threatened a second victim and robbed him as well (offenses collectively referred to as "the 1999 offenses"). At the time of these offenses, defendant was on parole for prior robbery convictions. A parole detainer was lodged against him on September 21, 1999, the date of defendant's arrest for the 1999 offenses.

Subsequently, an Essex County grand jury returned four indictments against defendant, the first charging him with two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4a; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5a. A second indictment charged defendant with first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. A third indictment charged defendant with one count of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, while the fourth charged him with one count of first-degree robbery, N.J.S.A. 2C:15-1; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and one count second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a.

In May 2000, defendant pled guilty to first-degree robbery and third-degree possession of a weapon for unlawful purposes, which was amended to a fourth-degree offense. The judge sentenced defendant to an aggregate imprisonment term of fifteen years with an eighty-five percent disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c. Appropriate fines and penalties were also imposed.

On October 20, 2000, defendant pled guilty to one count of first-degree robbery and one count of second-degree possession of a weapon for unlawful purposes, which was amended to a fourth-degree offense. The sentencing judge imposed an aggregate, fifteen-year sentence of imprisonment with an eighty-five percent disqualifier and five years of parole supervision following his release. Appropriate fines and penalties were also imposed. On the same date, defendant also pled guilty to one count of first-degree robbery and one count of third-degree possession of a weapon for unlawful purposes and sentenced to an aggregate term of fifteen years subject to an eighty-five percent disqualifier. All other charges were dismissed, and the sentences imposed were to be served concurrently to one another and concurrently to sentences imposed for federal offenses by the United States District Court as well as the sentence defendant was to serve for violation of his parole. At the time of sentencing, the judge stated in defendant's presence: "There's one day of jail credit."

Defendant did not file a direct appeal, but in November 2007, seven years after the entry of the judgment of conviction, defendant filed the PCR. The judge denied the PCR, and this appeal followed.

On appeal, defendant raises the following issues:

POINT 1

A Procedural Bar to Zimmerman's PCR Petition Was A "Fundamental Injustice" Because of The Jail Credit Sentence, Plain Error Not Raised Below

POINT 2

The Judge's Failure to Make a Record of Zimmerman's Understanding of Jail Credit Law Violated His Due Process Rights Under The Federal And State Constitutions, Plain Error Not Raised Below

POINT 3

Zimmerman's Guilty Plea Was Not A Waiver Of His Right to Challenge Jail Credits, It Was Plain Error to Deny His PCR Petition Based on a Procedural Bar, Not Raised Below

POINT 4

Zimmerman Was Denied A Fair Criminal Process Because He Was Not Told the Exact Consequences Of His Guilty Plea, ...


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