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State of New Jersey v. Koream Walker

December 2, 2010

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



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1281.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I.

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.

10).

POINT II.

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS PETITION FOR ...


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