STATE OF NEW JERSEY v. TIMOTHY WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3197-04T43197-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY WALKER,

Defendant-Appellant.

______________________________________________

 

Submitted January 31, 2007 - Decided February 27, 2007

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Indictment Nos. 99-04-1309, 99-06-1891,

00-04-1180, 00-02-0054 and Accusation No.

00-05-1678.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Patricia Drozd,

Designated Counsel, of counsel and on

the brief).

Joshua M. Ottenberg, Acting Camden County

Prosecutor (Robert K. Uyehara, Jr., Special

Deputy Attorney General, Acting Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

On May 22, 2000, defendant entered a negotiated plea of guilty to allegations embodied in four indictments and an accusation including carjacking, two counts of first degree robbery, a count of second degree robbery and a count of receiving stolen property as well as a violation of probation. The other charges were to be dismissed, and defendant waived the right of appeal. In exchange the State recommended imposition of concurrent sentences aggregating fifteen years with 85% to be served before parole eligibility. Defendant received a fifteen-year sentence with a No Early Release Act (NERA) ineligibility term on the carjacking charge and concurrent sentences on the other charges. On the oral argument appeal, we affirmed the judgment, but remanded for the imposition of a seven-year term, as opposed to a four-year term, with respect to a concurrent sentence on the second degree robbery.

Thereafter, defendant filed a petition for post-conviction relief ("PCR") which was denied on December 3, 2004. Defendant appeals therefrom and argues that the Law Division improperly "denied defendant's request for an evidentiary hearing" on his claim of ineffective assistance of counsel. Defendant was assisted by Designated Counsel, see R. 3:22-6(a), who filed a verified petition and lengthy brief in support of the petition.

Before us, defendant claims entitlement to a hearing on the petition on several grounds. Defendant asserts that trial counsel met with him "only three or four times," and was not prepared for trial, never reviewed discovery with him, never explained that he was subject to NERA, and never reviewed "glaring deficiencies in the State's case" relating to an identification in at least one matter. Defendant also argues that appellate counsel never argued sentence disparity before us nor raised a Blakely issue. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Defendant entered a negotiated disposition to multiple charges, in exchange for dismissal of others and for concurrent sentences. There is no suggestion that the overall disposition would not have been accepted by, and was not beneficial to, defendant, particularly given his exposure to consecutive sentences on the multiple serious charges that he faced. He ended up receiving a sentence less than the mid-point for carjacking and concurrent presumptive sentences on the rest of the charges. Stated differently, the record contains no suggestion of a reasonable probability that but for counsel's incompetence or failure to act appropriately, defendant would not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209 (1985); State v. Chung, 210 N.J. Super. 421, 435-36 (App. Div. 1986). With respect to NERA, the plea form and "Supplemental Plea Form for No Early Release Act Cases" explained the application of NERA, and the potential sentence, including the NERA ineligibility term, was explained to defendant at the time of plea. Finally, there was an inadequate showing of ineffective representation by appellate counsel, and no basis for an evidentiary hearing on his claims. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

We affirm the order denying PCR substantially for the reasons given by Judge McNeill in his oral opinion of December 3, 2004. We add that State v. Natale, 184 N.J. 458, 494-95 (2005), subsequently held that a defendant's claim regarding the illegality of his sentence does not apply to a case no longer on direct appeal, unless the issue was previously raised. In any event presumptive sentences were imposed in this case, except for the carjacking which was below the middle of the range. State v. Zadoyan, 290 N.J. Super. 280, 289-92 (App. Div. 1996); N.J.S.A. 2C:15-2b.

Affirmed.

 

We decline to conclude that appellate counsel, who neglected to raise such an issue before Blakely v. Washington was decided, was himself or herself ineffective

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A-3197-04T4

February 27, 2007