STATE OF NEW JERSEY v. HERBERT ALLICOCK

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6377-05T46377-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERBERT ALLICOCK,

Defendant-Appellant.

__________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 01-10-1197.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction entered on August 7, 2003, following a remand from this court. On the remand, defendant was resentenced, on count one of an indictment, alleging first-degree possession with intent to distribute over twenty-five pounds of marijuana, as a second-degree offender to seven years in the custody of the Commissioner of Corrections with a two-year period of parole ineligibility. At the same time defendant was also sentenced to a concurrent term on count three to a four-year sentence of imprisonment for eluding. Defendant also appeals from the denial of his subsequent motion to withdraw his guilty plea.

In our June 13, 2003, order remanding the matter, we indicated that defendant had pled guilty to a first-degree crime downgraded, pursuant to the negotiated disposition for sentencing under N.J.S.A. 2C:44-1(f)(2) as a second-degree offender, but that the parole ineligibility term imposed was not mandatory. The sentencing judge thereafter sentenced defendant to the same sentence originally imposed but did not consider the two-year period of parole ineligibility to be mandatory. On this appeal defendant argues that there is no adequate factual basis to support the guilty pleas to possession with intent to distribute or eluding which had been entered in May 2002, that he did not enter the plea knowingly or intelligently, that he was denied the effective assistance of counsel in entering the negotiated disposition and in failing to make a motion to suppress, that the sentence was excessive, and that he is entitled to withdraw his plea because of the aggregate of errors.

The plea form and transcript reveal a knowing, intelligent plea with an adequate explanation of the consequences of the plea. This case does not involve a motion to withdraw a guilty plea made before sentencing. See State v. Slater, 198 N.J. 145 (2009). To the contrary, defendant did not raise any question directed to the validity of the plea or factual basis on the first appeal or remand proceedings which included the resentencing. Accordingly, we affirm the denial of defendant's motion to withdraw his plea substantially for the reason stated by Judge Salem Vincent Ahto in his oral opinion of July 2, 2004. Moreover, we find no basis for disturbing the negotiated sentence that was re-imposed on August 7, 2003.

The record before us, including a negotiated downgrade for sentencing purposes, does not warrant post-conviction relief based on the ineffective assistance of counsel claim. See State v. Preciose, 129 N.J. 451 (1992). Compare State v. Cottle, 194 N.J. 449 (2008) (where defense counsel was the subject of criminal charges).

 
Affirmed.

The appeals were permitted to be filed out of time. See State v. Molina, 187 N.J. 531 (2006); State v. Altman, 181 N.J. Super. 539 (App. Div. 1981).

Defendant pled guilty to eluding on October 3, 2001. The plea was contingent on the guilty plea of the co-defendant. Defendant's initial plea was vacated after the co-defendant withdrew his plea. There is no claim that the initial plea was improperly vacated.

We recognize that the sentencing judge (not Judge Ahto) downgraded the degree for sentencing purposes and then imposed a sentence of parole ineligibility. We need not discuss the issue as defendant has been paroled.

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A-6377-05T4

 

May 19, 2009