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State of New Jersey v. Kevin Paulk

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN PAULK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-03-0714.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2012

Before Judges Sabatino and Fasciale.

This is an appeal of the trial court's denial of post-conviction relief ("PCR") to defendant Kevin Paulk. The matter arises principally out of a plea of guilty to first-degree robbery, N.J.S.A. 2C:15-1, that defendant entered in 1991 in Camden County. The robbery involved the attempted theft of money from a convenience store after brandishing a toy gun. Pursuant to the revised*fn1 plea agreement, the State recommended that defendant, a persistent offender with multiple prior convictions on indictable offenses, receive a thirty-year custodial sentence, with fifteen years without parole. He did not file a direct appeal.

In 1995, the trial court granted defendant's motion for reconsideration of his sentence in the Camden County case. It imposed a five-year probationary sentence, on the condition that defendant complete a drug treatment program.

While on probation for the Camden County offense, defendant was convicted in 1998 of another first-degree robbery in Burlington County. In accordance with the "three strikes" statute, N.J.S.A. 2C:43-7.1(a), defendant received a life sentence on the Burlington County conviction. Defendant appealed the Burlington County conviction, which this court affirmed. Certification was denied by the Supreme Court. State v. Paulk, 165 N.J. 529 (2000).

After failing to get his Burlington County conviction overturned on direct appeal, defendant then filed a PCR petition in that matter in 2001. As part of his argument, defendant noted that the revised judgment of conviction filed in Camden County in July 1995 had recited that he was guilty of only a third-degree robbery rather than a first-degree robbery.*fn2 He thus argued that he was not a persistent offender subject to the "three strikes" law. The trial court dismissed the petition.

Defendant then appealed the dismissal of his Burlington County PCR petition. We affirmed the dismissal in an unpublished opinion. State v. Paulk, No. A-6196-02 (App. Div. Mar. 3, 2006). We noted in our opinion that the Camden County judgment had since been corrected to reflect a first-degree robbery instead of a third-degree one. Id., slip op. at 5-6. We also found without merit defendant's argument that his Camden County trial attorney in 1991 had been constitutionally ineffective in failing to argue that the State had improperly "modified" the plea agreement before sentencing. Id., slip op. at 6. Certification was again denied. State v. Paulk, 186 N.J. 608 (2006).

Defendant then filed the present PCR petition in Camden County in 2009, eighteen years after his conviction and sentencing in that county. He again argued that his trial counsel in Camden County in 1991 was ineffective. This time he alleged that he had only authorized his trial attorney to negotiate a guilty plea that would have dismissed the charges in their entirety in exchange for his cooperation, but that the plea agreement instead exposed him to a custodial sentence. He also alleged weaknesses in the State's proofs of the robbery, noting that a toy gun was used rather than a real gun and that no victim suffered physical harm. According to defendant, had he known that the plea agreement would not call for an outright dismissal, he would not have pled guilty and would have taken his chances at a jury trial.

After considering the parties' written submissions, the trial court dismissed the petition as both procedurally barred by Rule 3:22-4 (barring issues that reasonably could have been raised on direct appeal) and Rule 3:22-12 (requiring a petition to be filed five years from the date of conviction), and lacking in substantive merit. In a nine-page written opinion dated June 1, 2010, the court rejected defendant's unsupported claim that he was falsely induced to enter into the plea agreement based upon a tacit "cooperation agreement." The court also rejected defendant's claim that the factual basis for first-degree robbery was insufficient because he had only used a toy gun in robbing the convenience store.

On the present appeal, defendant argues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE, SINCE THIS WAS THE DEFENDANT'S FIRST PETITION ON HIS CAMDEN COUNTY INDICTMENT, AND SINCE PCR COUNSEL SPECIFICALLY REQUESTED ORAL ARGUMENT, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S PETITION WITHOUT AFFORDING THE DEFENDANT THE OPPORTUNITY TO PRESENT ORAL ARGUMENT. THE COURT'S RULING WAS CONTRARY TO THE "SIGNIFICANT PRESUMPTION IN FAVOR OF ORAL ARGUMENT" UNDER STATE V. MAYRON, DEPRIVED THE DEFENDANT OF HIS RIGHT TO A PCR "HEARING" UNDER STATE V. RUE, AND VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF PCR COUNSEL UNDER STATE V. VELEZ AND STATE V. WEBSTER.

POINT II

SINCE THE DEFENDANT'S PETITION ESTABLISHED A VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PLEADING GUILTY TO A CRIME HE DID NOT COMMIT, AND HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA HEARING, THE PCR COURT MISAPPLIED ITS DISCRETION IN FINDING THAT THE DEFENDANT'S PETITION WAS PROCEDURALLY BARRED BY R. 3:22-4 AND R. 3:22-12.

POINT III

SINCE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST, THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF.

POINT IV

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT V

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

(A) The Order Denying Post-Conviction Relief Should Be Reversed And The Matter Remanded For A Full Evidentiary Hearing.

None of these arguments have any merit whatsoever.

Substantially for the cogent reasons expressed in the trial court's written opinion, we affirm the dismissal of the PCR petition. As a procedural matter, we only add that -- given the clear lack of merit to defendant's untimely allegations -- the court did not misapply its discretion in denying an evidentiary hearing, see State v. Preciose, 129 N.J. 451, 462 (1992), nor in denying oral argument, see State v. Mayron, 344 N.J. Super. 382, 387-88 (App. Div. 2001) (noting a PCR judge's discretion to deny oral argument based upon an assessment of, among other things, "the apparent merits and complexity of the issues raised").

Affirmed.


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