STATE OF NEW JERSEY v. EMANUEL C. WALTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0301-04T40301-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMANUEL C. WALTON,

Defendant-Appellant.

____________________________

 

Submitted October 25, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from Denial of Post-Conviction

Relief in the Superior Court of New Jersey,

Law Division, Criminal Part, Ocean County,

No. 99-09-1184.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Lon Taylor,

Assistant Deputy Public Defender, of

counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Assistant Prosecutor, of counsel; Nicholas

A Moschella, Jr., Law Clerk, on the brief).

PER CURIAM

Defendant appeals from the denial of his application for post-conviction relief. We affirm.

Defendant was indicted in Ocean County, Indictment No. 99-09-1184, charging him with: Count I, murder (a crime of the first degree) contrary to the provisions of N.J.S.A. 2C:11-3(a)(1); and Count II, possession of a weapon for an unlawful purpose contrary to the provisions of N.J.S.A. 2C:39-4 (a crime of the third degree). On April 6, 2001, defendant entered a guilty plea, before Judge Giovine, to Count I in return for which the State agreed to dismiss Count II and to recommend the minimum sentence of a thirty-year custodial term without parole. The sentence was imposed in accordance with that agreement. Defendant appealed alleging that the sentence was excessive. In an unpublished opinion, No. A-6868-01T4, we determined that the sentence was neither excessive, unduly punitive nor an abuse of discretion.

On February 26, 2003, defendant filed an application for post-conviction relief which was heard by Judge Citta, who denied the application on August 27, 2004. This appeal followed. On appeal, defendant asserts

POINT I

SINCE DEFENDANT WAS WRONGLY TOLD THAT THE 85% PAROLE BAR PURSUANT TO THE FORMER NO EARLY RELEASE ACT COULD APPLY TO A SENTENCE FOR A MURDER CONVICTION AS A RESULT OF TRIAL, HIS PLEA WAS NOT KNOWING AND VOLUNTARY AND MUST BE VACATED. ALTERNATIVELY, TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO ADDRESS THE ISSUE.

POINT II

SINCE THE TRIAL COURT FAILED TO ENSURE THAT PETITIONER KNOWINGLY AND VOLUNTARILY WAIVED AN INSANITY DEFENSE AT THE PLEA HEARING, DEFENDANT SHOULD BE ALLOWED TO WITHDRAW FROM THE GUILTY PLEA. ALTERNATIVELY, BOTH TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO ADDRESS THAT ISSUE.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO DISCUSS THE THREE PSYCHOLOGICAL EVALUATIONS AS WELL AS THE INSANITY AND DIMINISHED CAPACITY DEFENSES WITH PETITIONER.

POINT IV

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO DISCUSS DEFENDANT'S OPTIONS AT TRIAL AND WRONGLY TOLD DEFENDANT THAT IT WAS IMPOSSIBLE TO PREVAIL AT TRIAL.

Judge Citta issued a comprehensive analysis of each of defendant's allegations. With respect to defendant's first point, Judge Citta made liberal reference to the transcript of the acceptance of the plea. He concluded that defendant was correctly advised both of the status of the law as it existed at the time of the plea and of the existence of an appeal then pending before the Supreme Court that could increase the time defendant might have to serve before becoming eligible for release. Defendant cannot complain that he received a correct explanation of the law as it then existed and was made aware of a case having the capacity to change that law.

Judge Citta's factual findings are well supported by substantial credible evidence in the record and he drew appropriate conclusions of law with respect to all of defendant's arguments. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Watson, 261 N.J.Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993).

Affirmed for the reasons set forth in Judge Citta's comprehensive oral opinion of August 20, 2004.

 

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A-0301-04T4

November 10, 2005