STATE OF NEW JERSEY v. PATRICK WASHINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3114-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK WASHINGTON,

Defendant-Appellant.

______________________________

June 3, 2011

Submitted January 20, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 01-09-0424.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Patrick Washington appeals from the September 23, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

On September 21, 2001, defendant pled guilty to Accusation No. 01-09-0424 that charged him with having committed first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. In exchange for his guilty plea, the State agreed to recommend that defendant be sentenced to thirty years of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year period of parole supervision upon release. The State also agreed to dismiss un-indicted charges of robbery, murder, and a weapon violation. On December 7, 2001, the trial court found aggravating sentencing factors N.J.S.A. 2C:44-1a(1) (the offense was committed in an especially heinous manner); (2) (vulnerability of the victim because of his advanced age); (3) (risk that defendant would commit another offense); (6) (extent of defendant's prior criminal record); (9) (need to deter defendant from committing another offense); and (12) (defendant knew or should have known the victim was sixty years of age or older). After finding no mitigating sentencing factors, N.J.S.A. 2C:44-1b, and merging aggravating sentencing factors (2) and (12), the court sentenced defendant in accordance with the plea agreement.

In July 2007, defendant filed a petition for PCR, contending that he was denied effective assistance of counsel at the sentencing proceeding because his attorney "failed to argue vigorously on his behalf, acquiescing in the erroneous application of aggravating factors and failing to argue for the presence on the record and significance of mitigating factors." Specifically, defendant asserted that the trial court erroneously found aggravating sentencing factors N.J.S.A. 2C:44-1a(1), (6), and (9) and failed to argue "vigorously the significance of mitigating circumstances." On September 12, 2008, Judge Kelly rendered an oral decision without conducting an evidentiary hearing, denying defendant's petition. The court entered a memorializing order on the September 23, 2008.

On appeal, defendant argues:

POINT I.

THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING DUE TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE.

We have considered defendant's argument in light of the record and applicable law. We conclude that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Kelly in his oral decision of September 12, 2008.