STATE OF NEW JERSEY v. STEVEN MCGOWAN

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NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-5837-07T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

STEVEN MCGOWAN,

     Defendant-Appellant.
______________________________________________________

           Submitted April 19, 2010 - Decided May 12, 2010

           Before Judges Alvarez and Coburn.

           On appeal from the Superior Court of New
           Jersey,   Law    Division, Essex  County,
           Indictment No. 02-07-2857.

           Yvonne   Smith   Segars,    Public   Defender,
           attorney   for    appellant    (Philip   Lago,
           Designated Counsel, on the brief).

           Robert D. Laurino, Acting Essex County
           Prosecutor, attorney for respondent (Debra
           G. Simms, Assistant Prosecutor, of counsel
           and on the brief).

PER CURIAM

     Defendant    appeals   from    a   written   opinion   rejecting   his

arguments for post-conviction relief.

     The     indictment   charged   defendant     with:     first   degree

attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth degree

possession of a knife, N.J.S.A. 2C:39-5(d); and third degree

possession of a knife for unlawful purposes, N.J.S.A. 2C:39-

4(d).     A jury acquitted him on three of the charges, but found

him guilty of the charge of second degree aggravated assault.

The   sentence     imposed      was     an    extended         term       of    fifteen    years

imprisonment      with     eighty-five            percent       to    be       served   without

parole pursuant to the No Early Release Act.

      On direct appeal, we affirmed.                          State v. McGowan, Docket

No.   A-4682-03T4       (App.    Div.    Nov.       18,       2005)       (slip    op.).      The

Supreme Court granted defendant's request for certification and

summarily remanded the case to the trial court for resentencing

under State v. Pierce, 
188 N.J. 155 (2006), a decision rendered

after our affirmance.           State v. McGowan, 
188 N.J. 266 (2006).

      Defendant     then       filed     the       petition          for       post-conviction

relief.     At    the    conclusion          of    the    hearing,          the    trial   court

rendered    a    written      opinion    commenting             on    the      sentencing     and

denying    defendant's          claim        that        he     was       denied      effective

assistance of counsel.

      Respecting        the     underlying          facts,           we    incorporate        the

statement of facts contained in our earlier opinion.                                    In this

appeal, defendant contends that we should reverse the denial of

his ineffective assistance of counsel claims because his trial

attorney    "failed      to   object     to       the    prosecutor's             inappropriate




                                                                                        A-5837-07T4
                                              2

comments     during   opening      statement"    and   further    "failed     to

object" at the time of defendant's sentencing "to the double

counting of an aggravating factor."              He also contends that he

was denied the effective assistance of counsel on his petition

for post-conviction relief.           Finally, he contends that the trial

court improperly denied him an evidentiary hearing.

     After carefully considering the record and briefs, we are

satisfied     that    all     of   defendant's    arguments      are   without

sufficient merit to warrant discussion in a written opinion.                  R.

2:11-3(e)(2).     Regarding his claims about his trial attorney, we

also affirm substantially for the reasons given by the trial

court in its written opinion of February 26, 2008.

     Defendant's contention respecting his original sentencing

is   moot.        The       Supreme    Court    remanded   the     case      for

"resentencing."       Although the trial court discussed the subject

in the opinion issued on February 26, it still has not carried

out the Supreme Court's mandate, which requires resentencing.

Thus, after our remand, defendant will have a full opportunity

to address the factors relevant to his sentencing, after which

the trial court shall resentence defendant pursuant to the order

of the Supreme Court.

     Although defendant claims that his post-conviction counsel

was constitutionally inadequate for failing to present arguments




                                                                       A-5837-07T4
                                        3

that defendant had requested, the brief fails to identify those

arguments,   let    alone   explain   why   they   are   of   constitutional

dimension.      The same is true with respect to the claim that

defendant    was     improperly    denied    an    evidentiary     hearing.

Consequently, we reject both of these points.

    We note in passing that this case is not even properly

before us.    Apart from the trial court's failure to resentence

defendant, as directed by the Supreme Court, we are confronted

with a record that contains no order.         The trial court's opinion

of February 26 is not an order, it is an opinion.                   And its

"CONCLUSION,"      which reads as follows does not make the opinion

an order:    "For the reasons stated above, Petitioner's Motion

for Post Conviction Relief has been GRANTED as to Point One and

DENIED as to Points Two and Three."           Appeals may only be taken

from judgments or orders.         Do-Wop Corp. v. City of Rahway, 
168 N.J. 191, 199 (2001).

    Affirmed in part and remanded for resentencing.




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