STATE OF NEW JERSEY v. FRED LEHMANN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4663-07T44663-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRED LEHMANN,

Defendant-Appellant.

______________________________

 

Submitted June 16, 2009 - Decided

Before Judges Lisa and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 05-10-3380-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Virginia Drick

Messing, Designated Counsel, of counsel and

on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent (Jack R.

Martin, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Fred Lehmann appeals from the March 7, 2008 denial of his petition for post-conviction relief (PCR) by Judge Michael R. Connor.

On February 9, 2006, defendant entered a guilty plea pursuant to a negotiated plea agreement with the State to the charge of possession of cocaine, a third-degree offense. In exchange for the guilty plea, the State agreed to recommend that the court impose a sentence of probation and a long-term drug rehabilitation program or, if the defendant was not willing or able to enter a rehabilitation program, that he be sentenced to a term of three years in New Jersey State prison.

Prior to sentencing, defendant was interviewed by a substance abuse evaluator of the Atlantic County TASC Program who found that defendant's motivation to follow drug program guidelines was "questionable."

The defendant appeared before Judge Connor for sentencing on April 28, 2006, and his counsel reported that he was unable to find a suitable in-patient program for defendant. Judge Connor imposed the alternative sentence contained in the plea bargain of a three-year State prison term but stated, "If I detect a motivation on Mr. Lehmann's part and if that's a viable option, I would certainly reconsider." Although the judge indicated that he would keep the option open, the record does not indicate that defendant filed a motion to change his custodial sentence to permit his entry into a drug rehabilitation program under Rule 3:21-10(b). See State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976). Moreover,

defendant did not file a direct appeal of his sentence or seek to vacate his guilty plea.

On July 20, 2007, defendant filed his pro se PCR petition, and after counsel was assigned, a supplemental brief was filed on July 31, 2008. The arguments made by or on behalf of defendant were that his plea counsel misrepresented to him that he would get drug treatment and not jail, that his attorney did not make reasonable efforts to find him a bed in a drug rehabilitation program, that his plea of guilty was not voluntary because of his attorney's misrepresentation, that his attorney was ineffective for not moving to withdraw the guilty plea after failing to find a drug rehabilitation program, and that his attorney was ineffective for not making compelling arguments on defendant's behalf at the time of sentence. Judge Connor rejected defendant's arguments and denied his application for PCR. This appeal followed.

The following arguments are made on appeal:

POINT I - IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.

POINT II - THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

Defendant does not argue for his plea to be vacated in order to go to trial on the charge. The only relief he seeks in this PCR proceeding is a re-sentence to a long-term drug treatment program, but that is no longer possible because he has completed serving his sentence and was released from custody on April 25 2008. Therefore, his appeal is moot. Furthermore, although not necessary to our opinion, we note that defendant's arguments that he received ineffective assistance of counsel are totally without merit and do not satisfy either of the prongs of the Strickland/Fritz test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Appeal dismissed as moot.

 

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A-4663-07T4

July 21, 2009