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November 29, 2010


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-04-0840.

Per curiam.


Submitted November 15, 2010

Before Judges Rodri-guez and Grall.

Defendant Michael Louis LoBue appeals from the denial of his petition for post-conviction relief (PCR). The underlying conviction was entered on the basis of defendant's guilty plea to one count of first-degree robbery, N.J.S.A. 2C:15-1, that was charged in an indictment returned by the grand jurors for Ocean County. Defendant pled guilty on the State's promise to recommend a sentence within the range applicable to second-degree robbery that would run concurrently with any sentence imposed on drug and weapons charges defendant had pending in Monmouth County. Consistent with that agreement, the judge sentenced defendant to a seven-year term for first-degree robbery, which is subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant did not appeal.

At the time of his guilty plea, defendant admitted that he went to a Wawa convenience store in Brick Township. There, he placed his hand in his jacket pocket so that the victim would think he had a gun. He then threatened to kill the victim if she did not give him money.

Defendant was arrested in Wall Township for a different crime a few hours after the robbery. According to the information included in the presentence report, defendant was arrested later that day during a traffic stop. A police officer noticed defendant was driving without a seat belt and saw his car cross the center line twice. Those observations led the officer to check the car's registration and learn that the registered owner had a suspended driver's license and outstanding arrest warrants. Consequently, the officer stopped the car. As the officer approached and asked defendant for his credentials, he noticed that the car was the same color as the one reportedly used in the Wawa robbery and that defendant fit the description of the perpetrator. While checking defendant's credentials, the officer saw a folding knife, a crack pipe and what he believed to be crack cocaine on the front seat and console. He arrested defendant for possession of a controlled dangerous substance and possession of a knife under circumstances not manifestly appropriate for its use, and contacted the Brick Township police, who later took defendant into custody for the robbery.

Defendant filed this petition for PCR on December 17, 2007. He contended that his trial attorney should have challenged his arrest and argued for a three-year period of NERA parole. PCR counsel was appointed to represent defendant, and the attorney argued that trial counsel's performance was deficient because he argued for a six-year sentence, rather than a five-year sentence; did not relate defendant's drug addiction to the mitigating factor available when there are circumstances tending to excuse or justify the crime, N.J.S.A. 2C:44-1b(4); did not argue hardship based on the health of defendant's father and his family's need for him to take over his father's business, N.J.S.A. 2C:44-1b(11); and did not argue for a three-year term of NERA parole rather than a five-year term.

Judge Den Uyl was assigned to the petition, but he had not sentenced defendant. Consequently, he reviewed the transcripts of defendant's guilty plea and sentencing hearings and the presentence report. The judge detailed defendant's extensive criminal history and the arguments and evidence presented at sentencing. He noted that at the time of the sentencing hearing, defense counsel presented defendant's statement asserting a connection between his addiction and criminal conduct and information on the declining health of defendant's father who was suffering from a fatal condition.

Applying the standards for relief based on ineffective assistance of counsel mandated by Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984) and State v. Allegro, 193 N.J. 352, 366 (2008), Judge Den Uyl determined that defense counsel's performance at sentencing did not fall below the range of acceptable representation. He further concluded that if defendant's attorney had made the additional arguments suggested by PCR counsel, the sentencing judge would not have imposed a different sentence.

We affirm those determinations substantially for the reasons stated by Judge Den Uyl. We add only one observation that is relevant to defendant's five-year NERA parole term. No argument defense counsel made would have permitted the judge to sentence defendant to a parole term shorter than five years. Although defendant received the benefit of a sentence within the range for a second-degree crime, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-1f(2), as a matter of law, the duration of a NERA parole term depends on the degree of the crime for which defendant is sentenced, not the sentence imposed. N.J.S.A. 2C:43-7.2; State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). Defendant's claim that he is entitled to relief because his attorney did not file a motion to suppress is unsupported by an assertion of facts that raise a question about the validity of the traffic stop or arrest in Wall Township. The argument he presents to establish that a competent attorney would have filed a motion to suppress and obtained relief material to his decision to plead guilty to robbery is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).



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