                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5877-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DAVID W. GRAHAM, a/k/a
QUINTON PRICE, LEON
COLEMAN, DARELL GRANT,
DAVID GRANT, ALBERT
JOHNSON, JAMES D. JONES,
ANDRE MC DOWELL, ANDRE
PRICE, DARRELL ROGERS,
EUGENE HILL, PRICE QUINTON,
DAVID WILLIAMS, DARELL
ROGERS, and TIQUAN JONES,

     Defendant-Appellant.
_________________________________

                    Submitted September 12, 2019 – Decided September 20, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-01-0015.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Karen A. Lodeserto, Designated Counsel, on
            the brief).

            Lyndsay V. Ruotolo, Acting Union County Prosecutor,
            attorney for respondent (Reana Garcia, Special Deputy
            Attorney General/Acting Assistant Prosecutor, of
            counsel and on the brief).

PER CURIAM

      Defendant, David Graham, appeals from an order that denied without an

evidentiary hearing his first petition for post-conviction relief. He argues a

single point:

            THIS MATTER SHOULD BE REVERSED AND
            REMANDED TO THE PCR COURT FOR AN
            EVIDENTIARY HEARING AS IT WAS NOT
            ADDRESSED WHY TRIAL COUNSEL FAILED TO
            CHALLENGE AGGRAVATING FACTORS OR
            RAISE MITIGATING FACTORS WHICH WOULD
            HAVE REDUCED DEFENDANT'S SENTENCE
            EXPOSURE.

      We affirm, substantially for the reasons expressed by Judge John M.

Deitch in his February 12, 2018 written opinion.        We add the following

comments.

      After a grand jury charged defendant in a five-count indictment with first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) and (2), first-degree

death by auto, N.J.S.A. 2C:11-5(b)(3), second-degree eluding, N.J.S.A. 2C:29-


                                                                         A-5877-17T4
                                       2
2(b), and third-degree receiving stolen property, N.J.S.A. 2C:20-7, he negotiated

a plea. Defendant pled guilty to second-degree death by auto in exchange for

the State's agreement to dismiss the remaining charges and recommend the

maximum sentence of ten years, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2.   During the plea hearing, Defendant admitted to the following:

driving a pick-up truck while under the influence of heroin and cocaine,

speeding to elude police, continuing to speed after the police stopped chasing

him, and crashing into a pole and guardrail.            The pick-up's passenger,

defendant's girlfriend, died in the crash.

      The trial court sentenced defendant in accordance with the plea.

Defendant did not appeal. Two years and two months after being sentenced,

defendant filed his PCR petition.

      Following briefing and oral argument, Judge Deitch issued a written

opinion in which he rejected defendant's claim that his sentence was illegal.

Judge Deitch explained the difference between an illegal sentence on one hand

and an excessive sentence on the other, determined defendant's claim was that

his sentence was excessive, and rejected that claim as procedurally barred,

defendant having failed to raise it on direct appeal.




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                                         3
      The judge nonetheless considered the substance of the petition and

determined defendant had not established a prima facie ineffective-assistance-

of-counsel claim. Defendant had claimed his counsel was ineffective for failing

to argue more strenuously at sentencing for mitigating factors and failing to

object to the trial court's allegedly improper consideration of aggravating

factors. As Judge Deitch noted, the trial court's sentencing decision, including

its evaluation of aggravating and mitigating factors, was amply supported by the

record.

      Our review of the sentencing record leads us to agree entirely with Judge

Deitch. We add only that defendant's speculative assertions about what might

have happened had his counsel made different or more strenuous arguments are

insufficient to establish an ineffective-assistance-of-counsel claim. State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's arguments

are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




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