August 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR VESTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 03-02-0467 and 04-11-4396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Sapp-Peterson and Ostrer.
Defendant, Victor Veston, who is no longer incarcerated, appeals from the May 14, 2010 order denying his petition for post-conviction relief (PCR). We remand for a correction of the Judgment of Conviction (JOC), but otherwise affirm.
On April 14, 2003, defendant appeared before the trial court and, pursuant to a negotiated plea agreement in connection with a nine-count indictment, pled guilty to second-degree eluding, N.J.S.A. 2C:29-2b (Count One); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Three); and third-degree simple assault upon a police officer, N.J.S.A. 2C:12-1a and - 1b(5) (Count Five). The indictment arose out of an August 21, 2002 incident during which defendant, while operating a motor vehicle under the influence of alcohol, led police on a vehicle chase through Cherry Hill and Moorestown. In exchange for the guilty pleas, the State agreed to dismiss the remaining siX counts of the indictment returned against defendant and to recommend an aggregate six-year custodial term, along with fines, penalties, and forfeiture of a weapon and ammunition. Sentencing was scheduled for May 30, but defendant failed to appear on that date. His bail status was revoked and a bench warrant issued for his arrest.
Defendant was subsequently indicted for bail jumping, N.J.S.A. 2C:29-7. He was eventually apprehended and brought before the court on January 31, 2005, where he pled guilty to the bail jumping charge. The State agreed to recommend a one- year custodial sentence to be served consecutive to the sentence imposed in connection with the earlier charges to which he pled guilty and then failed to appear for sentencing. The court sentenced defendant to an aggregate seven-year prison term on both indictments, in accordance with the plea agreements. Defendant filed no direct appeal of the convictions or the sentences imposed.
On July 16, 2008, defendant filed a pro se PCR petition. Once PCR counsel was assigned, counsel filed a supplemental brief on behalf of defendant, along with his certification claiming ineffective assistance of counsel. The PCR judge denied the petition without conducting an evidentiary hearing.
The present appeal followed.
On appeal, defendant raises the following points for our
THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ARGUING MITIGATING FACTORS TO THE COURT.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ARGUING THAT THE APPELLANT'S STATEMENT AT THE PLEA OF HIS STATE OF MIND AT THE TIME OF THE OFFENSE DID NOT ESTABLISH THE REQUISITE MENS REA TO BE GUILTY OF THE AGGRAVATED ASSAULT CHARGE.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING AND PURSUING THE AFFIRMATIVE DEFENSE OF INTOXICATION.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT DISCUSSING WITH THE APPELLANT THE DEFENSE OF VOLUNTARY INTOXICATION.
E. TRIAL COUNSEL WAS INEFFECTIVE BY NOT ADVISING THE APPELLANT OF CERTAIN DEFENSES AND TELLING HIM TO PLEAD GUILTY INSTEAD OF GOING TO TRIAL.
THE COURT COMMITTED ERROR BY NOT PERMITTING THE APPELLANT TO WITHDRAW HIS PLEA AS PART OF HIS PETITION FOR POST[-]CONVICTION RELIEF.
THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S PETITION OR[,] IN THE ALTERNATIVE[,] GRANTING THE APPELLANT AN EVIDENTIARY HEARING DUE TO THE CUMULATIVE EFFECT OF THE TRIAL COUNSEL'S NUMEROUS ACTS OF INEFFECTIVE ASSISTANCE.
After carefully considering the record and briefs, we are satisfied that none of the arguments offered by defendant are of sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Louise DiRenzo Donaldson in her thorough and well-reasoned May 14, 2010 written opinion. We add the following brief comments with respect to correction of the JOC. The State agreed to amend the JOC to reflect a fourth- degree conviction and a concurrent eighteen-month custodial sentence on Count Five of the first indictment after confirming that the victim . . . did not suffer any bodily injury as a result of the assault, and that defendant's factual statement at the time of his guilty plea would support a conviction for a fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(5), rather than a third-degree assault under said statute[.]
However, the JOC was never amended as proposed. We therefore remand to the trial court for the entry of an amended JOC in accordance with the consent order.
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