STATE OF NEW JERSEY v. STEVEN MILBOURNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6324-06T46324-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN MILBOURNE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 7, 2008 - Decided

Before Judges Wefing and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1628.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven Milbourne appeals from an order entered on February 22, 2006 denying his petition for post-conviction relief (PCR). We affirm.

Pursuant to a negotiated plea agreement, defendant pled guilty on August 27, 2001 to first degree armed robbery, N.J.S.A. 2C:15-1; and fourth degree resisting arrest, N.J.S.A. 2C:29-2. On November 16, 2001, he was sentenced to an aggregate term of eleven years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On January 8, 2003, we affirmed after the matter was argued on the Sentence Only Argument (SOA) calendar.

In an amended verified PCR petition dated August 11, 2005, defendant claimed that trial counsel was ineffective because he (1) coerced defendant into pleading guilty by telling him he would receive a life sentence if he did not; (2) failed to provide defendant with discovery so he might have assisted in the preparation of his own defense; and (3) failed to move to dismiss the indictment when the prosecutor requested to amend the first count to remove a first degree murder charge. Defendant also claimed that appellate counsel was ineffective by failing to remove the appeal from the SOA calendar and place it on a plenary calendar. Finally, defendant claimed that his sentence was illegal under State v. Natale, 184 N.J. 458 (2005).

After hearing argument, the PCR court addressed the Natale issue first. The court correctly found that because defendant was sentenced to a term lower than the presumptive or mid-range term, Natale does not apply.

With respect to defendant's claim that he was coerced into pleading guilty, the PCR court noted that the transcript of the plea colloquy

clearly demonstrates that the defendant was represented by competent counsel; the defendant understood the terms of the plea agreement; the plea colloquy; and the State clearly articulated the terms and conditions of the plea, and the Court thereafter addressed counsel for the defendant who advised that he had an opportunity to go through all of the questions individually on the plea form with the defendant.

During the plea colloquy, defendant was also asked by the court if he understood the charges and the consequences of the plea and defendant responded affirmatively. The court explained the NERA aspect of sentencing and defendant acknowledged that he had read and understood the contents of the forms setting out those terms of the agreement. The PCR court further noted that defendant testified he had reviewed the plea form with counsel and that he answered all of the questions freely and voluntarily. Moreover, after he was sentenced, defendant sent a letter to the sentencing judge acknowledging his guilt and apologizing to the victim. Based upon that letter, as well as the plea colloquy, the PCR court concluded that defendant was not coerced into pleading guilty.

With respect to defendant's claim that counsel should have moved to dismiss the indictment when the State amended it, the PCR court indicated that the amendment was to address a clerical error and not the substance of the indictment or the presentation to the Grand Jury. Consequently, there was no basis for a motion to dismiss the indictment.

With respect to defendant's claims that counsel failed to investigate and provide him with discovery, the PCR court noted that defendant made no proffer that the investigatory material would have yielded evidence demonstrating that defendant was not guilty. The PCR court commented that defendant was sending letters saying, "I did it, I'm wrong, and now he wants counsel to find some way to find that he's not guilty."

In this appeal, defendant argues:

POINT ONE

THE DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT APPLIED A PAROLE DISQUALIFIER PURSUANT TO THE NO EARLY RELEASE ACT WITHOUT AN ADEQUATE FACTUAL BASIS

The Record Does Not Establish That The Knife Used By The Defendant Was A "Deadly Weapon" Within The meaning Of The Pre-Amendment No Early Release Act

POINT TWO

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

A. The Constitutional Test For Ineffective Assistance Of Counsel

B. The Defendant Established A Prima Facie Claim Of Ineffective Assistance Of Counsel And Is Entitled To A Determination Of The Merits Of His Claim

POINT THREE

THE DEFENDANT'S SENTENCE SHOULD BE REVIEWED IN LIGHT OF THE NATALE DECISION

With respect to the NERA argument, defendant contends that the knife used in the robbery was not demonstrated to be a "deadly weapon." We note initially that when a defendant acknowledges in a plea agreement that NERA is applicable, he cannot later challenge its applicability without first moving to vacate the plea. State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001). Although defendant did acknowledge the applicability of NERA on his plea form and during the plea colloquy, he did not move to vacate his plea prior to challenging his NERA sentence. Nevertheless, we will address the merits of his claim.

In 2001, the NERA statute was amended to address the definitions of "violent crime" and "deadly weapon" in subsection d. Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:43-7.2[1]. The amendment eliminated subsection d and substituted a new subsection listing the specific crimes to which NERA applied. Ibid. Defendant's offenses occurred before the June 29, 2001 effective date of the amended statute and he was, therefore, sentenced under the pre-amendment section that defined a "deadly weapon" as

any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.

At the PCR argument, defense counsel maintained that the knife could have been a butter knife or a plastic knife, but the transcript did not spell it out and defendant could not, therefore, be subject to a NERA parole ineligibility.

During the plea colloquy on August 27, 2001, defense counsel asked the following question:

On or about April 19th, 2001, did you have an occasion to injure Lynne Knudson?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: Did you, in fact, cut her with a knife?

THE DEFENDANT: Yes, I did.

The prosecutor then asked:

And you - and you said here that you inflicted bodily injury upon her with a knife. Is that what you said?

THE DEFENDANT: Yes, it's what I said.

Thus, defendant admitted that he inflicted bodily injury on the victim with a knife, defeating defendant's PCR argument that it could have been a butter knife or a plastic knife.

Moreover, the pre-sentence report contains a narrative report stating:

The victim states the actor had knocked on her door a couple of times complaining about another tenant. The victim told the actor to leave and he did. The actor then returned and entered the room via an unlocked door and began stabbing the victim with a twelve inch serrated kitchen knife . . . . The victim was cut several times on the left arm.

The pre-sentence report is part of the record and defendant did not object to or correct it at sentencing. We are convinced that there is more than sufficient evidence here to support the conclusion that defendant used a deadly weapon in the commission of the crime.

We have carefully considered defendant's ineffective assistance of counsel arguments and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The PCR court addressed each of defendant's claims and we are satisfied that the record fully supports its findings and conclusion that defendant failed to meet the standard for ineffective assistance of counsel articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). R. 2:11-3(e)(2).

With respect to the Natale argument, the trial court was correct in noting that defendant was sentenced to a term of eleven years on a first degree offense, significantly below the presumptive or mid-range term. But, more significantly, Natale was decided in 2005 and defendant's direct appeals concluded in 2003. Accordingly, defendant was not in the "pipeline" when Natale was decided. The sentence was correct.

Affirmed.

(continued)

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A-6324-06T4

May 21, 2008