December 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KOREAM WALKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1281.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges Fuentes and Gilroy.
On February 2, 2004, defendant was charged under Indictment No. S-0202-04 with two counts of third-degree distribution of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35- 5a(1) and N.J.S.A. 2C:35-5b(3) (counts one and four); two counts of second-degree distribution of a CDS within 500 feet of public housing, N.J.S.A. 2C:35-7.1a (counts two and five); and two counts of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (counts three and six). On April 2, 2004, defendant was charged under Indictment No. S-0666-04 with fourth-degree possession of a weapon (a knife) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count one); and fourth-degree possession of a weapon by one previously convicted of possession of a CDS with intent to distribute, N.J.S.A. 2C:39-7a (count three). On June 17, 2004, defendant was charged under Indictment No. 04-06-1281 with fourth-degree possession of a weapon (a knife) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d. On July 12, 2004, defendant was charged under Accusation No. A-1412-04 with third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b.
On July 12, 2004, defendant entered into a plea agreement with the State pleading guilty to count two under Indictment No. S-0202-04 (second-degree distribution of a CDS within 500 feet of public housing); the single count under Indictment No. 04-06-1281 (fourth-degree possession of a knife under circumstances not manifestly appropriate for lawful use); and the single count under Accusation No. A-1412-04 (third-degree unlawful possession of a handgun). In exchange, the State agreed to recommend that the court impose a ten-year term of imprisonment with a five-year period of parole ineligibility on the conviction of count two under Indictment No. S-0202-04, an eighteen-month term of imprisonment on the conviction under Indictment No. 04-06-1281, and a five-year term of imprisonment on the conviction under Accusation No. A-1412-04, with the sentences to run concurrent with each other. The State also agreed to dismiss all other charges.
On September 17, 2004, the trial court sentenced defendant in accordance with the terms of the plea agreement. The court dismissed all other charges, and imposed all appropriate fines and penalties. However, the judgment of conviction (JOC) for fourth-degree unlawful possession of a weapon under Indictment No. 04-06-1281 references the offense as a third-degree crime, rather than a fourth-degree crime.
On August 27, 2007, defendant filed a petition for post-conviction relief (PCR), arguing that his sentence was excessive, illegal, or otherwise unconstitutional; he was denied effective assistance of trial counsel because his attorney failed to argue against the court finding aggravating sentencing factor N.J.S.A. 2C:44-1a(11) and failed to argue that the court should consider mitigating sentencing factors N.J.S.A. 2C:44-1b(8), (9), and (12); his PCR petition should not be procedurally barred because the arguments could have been raised on direct appeal, or as untimely, pursuant to Rules 3:22-4 and 3:22-12(a), respectively; and he was entitled to an evidentiary hearing on his petition. On July 29, 2008, Judge Roma entered an order supported by a written decision denying defendant's petition.
On appeal, defendant argues:
THE PCR COURT ERRED IN HOLDING THAT DEFENDANT WAS NOT DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL (U.S. Const., AMEND. VI, XIV; N.J. CONST. (1947), Art. I, par.
THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.
THE PCR COURT ERRED IN HOLDING THAT DEFENDANT'S SENTENCE WAS NOT MANIFESTLY EXCESSIVE.
THE PCR COURT ERRED IN HOLDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
We have considered defendant's arguments in light of the record and applicable law, and determine that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Roma in his written decision of July 29, 2008. Nonetheless, we add the following comments.
Defendant collaterally attacks his ten-year aggregate term sentence under the guise of ineffective assistance of counsel. In so doing, defendant does not deny he was properly informed that under the terms of the plea agreement the State was going to recommend a ten-year term sentence on the second-degree CDS conviction under count two of Indictment No. S-0202-04. Rather, defendant's primary argument is that trial counsel failed to "inform him that the plea offered to a ten-year term constituted the maximum term sentence for a second-degree offense." The argument is meritless. The first page of the plea form that was reviewed, initialed, and signed by defendant before entering his plea indicates that the maximum term sentence for the second-degree offense of distributing a CDS within 500 feet of public housing is ten years of imprisonment. Because defendant acknowledged at the time of the plea proceeding that the maximum sentence for a second-degree offense was ten years of imprisonment, defendant failed to meet the first prong of the Strickland v. Washington*fn1 ineffective assistance of counsel standard.
The State concedes that the trial judge, when sentencing defendant improperly, considered aggravating sentencing factor N.J.S.A. 2C:44-1a(11) ("The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business . . . ."). The trial court determined that even if defendant's trial attorney had argued successfully against finding aggravating sentencing factor (11) that "the absence of this aggravating factor [would change] neither the outcome nor the sentence in this case." We agree. The remaining three aggravating sentencing factors, N.J.S.A. 44:1a(3), (6), and (9), as found by the court on sentencing defendant, support the imposition of the ten-year term sentence with five years of parole ineligibility. What is more, because defendant's arguments concern the length of his sentence, the trial court correctly found that the arguments are procedurally barred pursuant to Rule 3:22-4 as the arguments could have been raised on direct appeal. Accordingly, we affirm.
Nonetheless, we remand for the court to enter an amended JOC on the single conviction of unlawful possession of a weapon under Indictment No. 04-06-1281 to reflect that defendant was convicted of a fourth-degree crime, not a third-degree crime. Because the sentence imposed was a lawful sentence for a fourth-degree crime, re-sentencing is not required.
Affirmed and remanded to enter an amended judgment of conviction.