STATE OF NEW JERSEY v. KEVIN LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4357-04T44357-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN LEE,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 26, 2007 - Decided

Before Judges Parker and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-09-1518.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Nicole D. DePalma, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kevin Lee appeals from an order entered on March 17, 2005 denying his petition for post-conviction relief (PCR). Pursuant to a negotiated plea agreement, defendant pled guilty to first degree aggravated manslaughter, N.J.S.A. 2C:11-4, downgraded from first degree murder, N.J.S.A. 2C:11-3a(1) or (2). Although the plea agreement called for a maximum term of nineteen years, defendant was sentenced to a term of fourteen years, subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's appeal of his sentence was heard on our excess sentencing calendar and affirmed on January 29, 2004. His petition for certification was denied by the Supreme Court on April 22, 2004, State v. Lee, 180 N.J. 150. On July 26, 2004, defendant filed a PCR petition, alleging that the sentence was illegal.

After hearing arguments, the trial judge correctly noted that

An illegal sentence is one that either violates a statute - it's a sentence that gives more than the statute allows, gives less than the statute allows, fails to incorporate a mandatory parole disqualifier, fails to incorporate a mandatory extended term, or a sentence is illegal if there's something about the sentencing that is illegal. For example, the judge would not allow defense counsel to be present, the judge would not allow the defendant to be present, the judge would not wait for a presentence report, something along those lines, something procedurally incorrect that makes it illegal.

The judge indicated that after reviewing the transcripts from the trial and appellate arguments, he found no indication that either trial or appellate counsel were ineffective. Finally, the trial judge found that R. 3:22-2(c) bars the petition for post-conviction relief because the issues were raised and litigated on direct appeal.

In this appeal, defendant argues:

POINT ONE

PETITIONER-APPELLANT'S SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING SINCE THE POST-CONVICTION COURT ERRED IN NOT FINDING TRIAL AND APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO SENTENCE DEFENDANT IN A SENTENCING RANGE ONE DEGREE LOWER PURSUANT [TO] N.J.S.A. 2C:44-1f(2)

POINT TWO

THE WITHIN SENTENCE MUST BE VACATED AND THE MATTER REMANDED SINCE DEFENDANT'S APPELLATE AND PCR COUNSEL FAILED TO ARGUE [SIC] THE TRIAL COURT CONSIDERED AN IMPROPER AGGRAVATING FACTOR (THAT A FINE WOULD BE PERCEIVED BY DEFENDANT AS A COST OF BUSINESS) AND THAT THE COURT FAILED TO APPROPRIATELY WEIGH SENTENCING FACTORS

POINT THREE

THE POST-CONVICTION COURT ERRED IN FINDING THAT THE WITHIN PETITION WAS BARRED AS PREVIOUSLY DECIDED BY THE APPELLATE COURT

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Francis B. Schultz on the record of March 17, 2005. Nevertheless, we add the following comment. The negotiated plea agreement provided for a maximum sentence of nineteen years. Defendant was sentenced to a term of fourteen years - five years less than the negotiated agreement. This, along with the transcript of the sentencing, indicates to us that defendant was vigorously represented by trial counsel during the sentencing proceedings.

 
Affirmed.

(continued)

(continued)

4

A-4357-04T4

July 10, 2007