Preview:

a1683-07.opn.html

Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) The status of this decision is unpublished

Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1683-07T41683-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH BORDEN, Defendant-Appellant. ___________________________

Submitted January 20, 2009 -- Decided Before Judges Reisner and Alvarez. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-12-2096. Yvonne Smith Segars, Public Defender, attorney for appellant (Maria Thompson, Designated Counsel, of counsel and on the brief). Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Laura A. Perry, Assistant Prosecutor, on the brief). PER CURIAM Defendant Keith Borden appeals the denial on February 1, 2007, of his petition for post-conviction relief (PCR). We affirm. On appeal, defendant raises the following points:
file:///C|/Users/Peter/Desktop/Opinions/a1683-07.opn.html[4/20/2013 2:54:12 PM]

a1683-07.opn.html

POINT I THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POSTCONVICTION RELIEF; TRIAL-LEVEL COUNSEL WAS INEFFECTIVE AND DEFENDANTAPPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE. A. THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING WHEN HIS ATTORNEY DID NOT OPPOSE THE APPLICATION OF AGGRAVATING FACTOR (6), EXTENT AND SERIOUSNESS OF DEFENDANT'S PRIOR RECORD. B. TRIAL-LEVEL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ARGUE ANY MITIGATING FACTORS AT SENTENCING. C. THE DEFENDANT-APPELLANT WAS ENTITLED TO AN EVIDENTIARY HEARING. POINT II THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN HIS MOTION FOR POST-CONVICTION RELIEF. We have considered the arguments in light of the record and applicable legal principles and reject the arguments in their entirety. See R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Kenny's oral decision. We make only the following comments. As his trial on Hudson County Indictment No. 03-12-2096 was about to begin, defendant entered a plea of guilty to count three, possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Pursuant to the plea agreement, he was sentenced on January 3, 2005, to six years in State prison, subject to three years of parole ineligibility. His sentence was made concurrent to the sentence that he was then serving. Defendant was eligible for a mandatory extended term under N.J.S.A. 2C:44-1. As Judge Kenny then noted, although the prosecutor did not file a formal motion for an extended term to be imposed, the prosecutor clearly stated that defendant had to be sentenced in that manner during the plea hearing as well as at sentencing, and spelled out the agreement on the plea form that defendant signed. The mandatory extended-term sentence range for a third-degree offense is five to ten years. 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971). Defendant improperly characterizes this argument as an ineffective assistance of counsel claim in an attempt to avoid application of Rule 3:22-4, which bars consideration on PCR of issues that could have been addressed by way of direct appeal. Similarly, defendant contends that trial counsel was ineffective in failing to make arguments in support of mitigating factor four, 349 N.J. Super. 496, 504 (App. Div. 2002) (a defendant's troubled youth, abuse by the victim, and expert reports that she suffered from post-traumatic stress disorder consistent with severe and chronic spousal

file:///C|/Users/Peter/Desktop/Opinions/a1683-07.opn.html[4/20/2013 2:54:12 PM]

a1683-07.opn.html

abuse are relevant to mitigating factors two, four, and five, 162 N.J. 240 (2000). Her ruling on that score is therefore unassailable.

Defendant now further contends that his PCR attorney was ineffective. In light of our determination that all of defendant's PCR contentions lack merit, we cannot agree that counsel's presentation was ineffective. Any lack of success on PCR was due to the lack of merit inherent in defendant's arguments, not to any failure on the part of counsel. Affirmed. (continued) (continued) 6 A-1683-07T4 April 21, 2009 0x01 graphic

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a1683-07.opn.html[4/20/2013 2:54:12 PM]



Download a1683-07.opn.pdf

New Jersey Law