On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-03-0307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2006
Before Judges Coburn and R. B. Coleman.
Defendant Julio Medina appeals from an order dated August 12, 2005, denying his petition for post-conviction relief (PCR). We affirm.
On February 26, 1999, pursuant to a plea agreement, defendant pled guilty to two counts of second degree attempted sexual assault, N.J.S.A. 2C:14-2c, and N.J.S.A. 2C:5-1, and one count of third degree aggravated assault, N.J.S.A. 2C:12-1b(5). In furtherance of the negotiated plea agreement, the State agreed to the dismissal of the remaining fifteen counts of the indictment, but recommended a ten-year concurrent sentence, subject to the No Early Release Act (NERA), for the two convictions for second degree attempted sexual assault, and a consecutive four-year sentence for the conviction for third degree aggravated assault. On August 3, 1999, the trial judge sentenced defendant to prison on each of the attempted sexual assault convictions and, in spite of the State's request for ten years, he imposed concurrent nine and one-half year terms, eighty-five percent of which defendant was required to serve before becoming eligible for parole for the two counts for attempted sexual assault to which defendant had pled guilty. The court also sentenced defendant to a consecutive four-year term, based on the conviction for aggravated assault.
Defendant filed an appeal relating solely to the sentence imposed, and on September 13, 2000, this court remanded the matter for reconsideration of the applicability of NERA and for reconsideration of jail credits. On January 26, 2001, the trial court determined that NERA applied to only one of the attempted sexual assault convictions, and the judgment of conviction was amended accordingly. The judge also ruled that defendant was entitled to two-hundred thirty-eight days of jail credit. The original judgment of conviction had only credited fourteen days.
Upon further appeal by defendant, this court entered an order dated February 19, 2002, affirming the sentence and finding that it was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. Thereafter, on June 11, 2002, the Supreme Court denied defendant's petition for certification. State v. Medina, 174 N.J. 40 (2002).
On July 30, 2003, defendant's motion for additional jail time credit was denied, and instead, the court ordered that the judgment of conviction be amended to award a total of sixty-eight days of jail time credit. On June 22, 2004, defendant filed a petition for PCR, at the hearing of which the judge vacated the July 30, 2003 order, and reinstated the two-hundred thirty-eight days of jail credit. A memorializing order, dated August 12, 2005, was entered to that effect. A separate order was entered that same date, denying the remaining relief sought by defendant's PCR petition.
On appeal from that August 12, 2005 order, defendant asserts:
POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED OR HIS SENTENCE MUST BE MODIFIED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO HIS INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.
(A) TRIAL COUNSEL FAILED TO OBTAIN A PSYCHIATRIC EVALUATION SO AS TO ESTABLISH A DEFENSE OF INTOXICATION OR DIMINISHED CAPACITY.
(B) TRIAL AND APPELLATE COUNSEL FAILED TO ADVOCATE FOR THE WITHDRAWAL OF DEFENDANT'S GUILTY PLEA.
(C) APPELLATE COUNSEL FAILED TO RAISE THE ISSUE THAT DEFENDANT'S SENTENCE FOR THE ATTEMPTED SEXUAL ASSAULT CONVICTIONS, WHICH EXCEEDED THE PRESUMPTIVE STATUTORY TERMS AND WAS NOT CLEARLY BASED ON THE COURT'S FINDING OF AN AGGRAVATING FACTOR OTHER THAN A PRIOR ...