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State v. Milius

Superior Court of New Jersey, Appellate Division

July 29, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
EDWARD MILIUS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2013

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1245.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

Before Judges Reisner and Yannotti.

PER CURIAM

Defendant Edward Milius appeals from an order entered by the Law Division on February 9, 2011, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and two); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count three); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four). Defendant pled guilty to counts one and two. The State agreed to recommend that the sentences imposed on the two counts run concurrently, but indicated that the sentence would be left to the court's discretion.

In response to questions of his attorney, defendant provided a factual basis for the plea. Defendant stated that between February 12, 2000, and February 11, 2003, he was living in Stafford Township and B.P. came to visit his home. Defendant said that at the time, B.P. was younger than thirteen years of age. Defendant admitted that he penetrated B.P.'s vagina with his finger, and also penetrated her vagina with his tongue.

Defendant acknowledged that he signed a plea form, indicating that the statutory maximum sentence for aggravated sexual assault was twenty years. He also acknowledged signing a form, which indicated that if he was convicted of a sexually violent offense such as aggravated sexual assault, he could be civilly committed upon the completion of his term of incarceration.

The trial court sentenced defendant to two, twenty-year terms of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and ordered that the sentences be served consecutively. Defendant appealed. We reversed the sentences imposed and remanded for re-sentencing. State v. Milius, No. A-0406-05 (App. Div. Aug. 21, 2007).

On remand, the trial court sentenced defendant to twenty-years of incarceration on both counts, subject to NERA, but ordered that they be served concurrently. Defendant appealed and we affirmed the sentences imposed. State v. Milius, No. A-06266-07 (App. Div. June 30, 2009). The Supreme Court subsequently denied defendant's petition for certification. State v. Milius, 200 N.J. 503 (2009).

II.

On May 6, 2010, defendant filed a pro se PCR petition. Defendant alleged that his trial counsel was ineffective because he did not conduct a formal investigation; failed to challenge the victim's veracity; did not inform him of the consequences of the plea; and failed to argue zealously on his behalf at sentencing. In addition, defendant asked to be permitted to withdraw his guilty plea.

The court assigned counsel to represent defendant, and counsel filed a brief raising the following arguments:

POINT I
PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS
POINT II
PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ZEALOUSLY ARGUE FOR PETITIONER'S PLEA WITHDRAWAL
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADDRESS, BY OBJECTION OR ANY OTHER MANNER[, ] [THE JUDGE'S] REASONS BEHIND THE ANALYSIS OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS, AS WELL [AS] THE JUDGE'S DOUBLE COUNTING OF AGGRAVATING FACTORS 3 AND 9 . . . .
POINT III
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
POINT IV
ADDITIONAL ISSUES RAISED BY PETITIONER IN HIS PETITION FOR POST CONVICTION RELIEF, OR A SUBSEQUENT PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT PETITION FOR POST CONVICTION RELIEF
POINT V
PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES ...

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