July 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-12-1430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2007
Before Judges Fuentes and Baxter.
Defendant Julio Rodriguez appeals from the November 15, 2005 order of the trial court denying his post conviction relief (PCR) petition. We affirm.
Defendant pled guilty on April 17, 2001, to one count of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5(b). The trial court granted the State's application to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. After reviewing his client's criminal history, defense counsel conceded that defendant was eligible to be sentenced to an extended term under the statute. The court thereafter imposed a term of seven years, with two years of parole ineligibility. The court also ordered defendant to pay the mandatory fines and penalties.
Prior to the imposition of sentence, the court conducted an evidentiary hearing to consider defendant's motion to withdraw his guilty plea. Two witnesses testified at this hearing: Richard Klein, the attorney who represented defendant at the plea hearing, and defendant himself. The Public Defender's Office assigned separate counsel to assist defendant in the prosecution of this motion.
In denying the motion, Judge Cantor noted that defendant agreed to plead guilty on the day the trial was scheduled to begin. She emphasized that both sides were prepared to proceed, and a jury panel had been dispatched to her courtroom. Against this backdrop, defendant decided to accept the State's plea offer which, as the transcript of the plea hearing clearly demonstrates, included the right of the State to seek an extended term sentence pursuant to N.J.S.A. 2C:44-3a.
Judge Cantor then gave the following characterization of the basis advanced by defendant in support of his motion to withdraw the plea:
I understand today he says to me he did not understand the extended term eligible. I find that to be disingenuous. I questioned Mr. Rodriguez myself on the record. I look at the plea form and on the front page of the plea form there's the word possible extension term ten years. I understand that Mr. Rodriguez is using an interpreter today, but on the day that the plea was entered there were two interpreters, one who Mr. Rodriguez confirmed on the record had gone over this plea form with him. The language of the ten year term is right on the first page. On the third page of the plea form it again says State could move for extended term and that's the page Mr. Rodriguez signed.
The court denied the motion. Defendant thereafter appealed, and by order dated June 5, 2002, we affirmed the sentence in the context of an excessive sentencing calendar.
On April 2004, defendant filed a PCR petition, again objecting to the length of the sentence, and claiming ineffective assistance of counsel. The petition came before Judge Cantor. After hearing arguments from defendant and his assigned counsel, Judge Cantor denied the petition. She noted that, in the hearing conducted in connection with defendant's motion to withdraw his guilty plea, she had specifically considered the testimony of defense counsel. As a matter of credibility, she had rejected defendant's claim that Klein had told him that, under the plea agreement, defendant was not exposed to a custodial sentence.
Against this record, defendant now appeals raising the following arguments.
BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE AND POST-CONVICTION RELIEF COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.
THE TRIAL COURT'S DECISION TO NOT PERMIT DEFENDANT TO WITHRAW HIS GUILTY PLEA WAS BASED ON AN ERRONEOUS EVALUATION OF THE CREDIBILITY OF TRIAL COUNSEL AND SHOULD BE REVERSED.
These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cantor in her oral opinion delivered from the bench on November 4, 2005.
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