STATE OF NEW JERSEY v. WILLIE JAMES LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0722-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE JAMES LEE,

Defendant-Appellant.

_________________________________

 

Submitted November 8, 2007 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, No. 01-06-0819.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Elizabeth H. Smith, Designated

Counsel, of counsel and 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 appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged in a seven-count indictment with two counts of first-degree attempted murder, two counts of second-degree aggravated assault, one count of second-degree possession of a weapon for an unlawful purpose, one count of third-degree unlawful possession of a weapon and one count of second-degree possession of a firearm by a convicted felon. Thereafter, he entered a negotiated plea of guilty to one count of first-degree attempted murder, and the trial court sentenced him to eleven years in prison, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and dismissed the remaining counts of the indictment. Defendant filed an appeal which was heard on our ESOA calendar. After reviewing the record and hearing argument on November 14, 2002, we affirmed by order No. A-5250-01.

Defendant filed a petition for post-conviction relief, and counsel was assigned to represent him. Defendant argued to the trial court that his attorney had not explained to him the consequences of receiving a NERA sentence; he also contended that his attorney had been ineffective for not investigating the case and for pressuring him to accept the plea bargain. The trial court, after hearing oral argument, denied relief and defendant has appealed.

On appeal, defendant raises the following arguments:

POINT ONE: THE COURT ERRED IN DENYING THE DEFENDANT'S ARGUMENT THAT TRIAL COUNSEL FAILED TO FULLY EXPLAIN THE CONSEQUENCES OF NERA AND IN FAILING TO ORDER A MATERIALITY HEARING

POINT TWO: THE COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING AS TO DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that his attorney did not advise him that there was a possibility he could spend more than eleven years in custody because he was being sentenced under NERA.

Defendant did, however, answer in the affirmative the following question which was contained on the plea form defendant executed:

Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and that you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?

Defendant now maintains that the meaning of that question was not made clear to him.

That assertion, however, is belied by the transcript of the plea proceedings. While that transcript does not contain an explanation on the record to defendant by his attorney, it does contain the following colloquy between defendant and the trial court.

Q. And, do you understand that under the terms of the No Early Release Act, this is a crime of the first degree, that you would be required to serve 85 percent of the sentence before you'd be eligible for parole?

A. Yes.

Q. And after you're released on parole, that you'd have to be placed on parole supervision for five years?

A. Yes.

Q. And you -- do you understand further that if you violate the conditions of your parole supervision that parole could be revoked and you may be subject to be returned to prison to serve any or all of the portion of the remaining period of parole even if you have completed serving the term of the prison -- of imprisonment previously imposed that you're facing?

A. Yes.

The trial court was entitled to rely, as are we, on defendant's unequivocal statement at that time that he understood the meaning of parole under NERA. If defendant had any uncertainty or confusion, he should have voiced it then.

 
We also reject defendant's argument that the trial court should have conducted an evidentiary hearing with respect to his claims of ineffective assistance of counsel. Defendant claims that his trial attorney was ineffective for not investigating the facts of the case, specifically, for not pursuing the possibility that the victim's son shot her, not defendant, and for not pursuing a claim of self-defense. Defendant has not put forth any facts which would support either of those two factually inconsistent positions. In our judgment, the trial court was entirely correct to decide the merits of defendant's petition without conducting an evidentiary hearing.

The order under review is affirmed.

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A-0722-06T4

December 24, 2007