July 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWIN ORTIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 3284-10-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2007
Before Judges C.S. Fisher and Grall.
In 1987, following a trial, defendant was convicted of felony murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, aggravated assault, and two counts of first-degree robbery. Following all appropriate mergers, defendant was sentenced on the felony murder conviction to a thirty-year term of imprisonment without parole eligibility. The trial judge also imposed fifteen-year terms of imprisonment on both robbery convictions, a four-year term of imprisonment on the unlawful possession of a weapon conviction, and a seven-year term of imprisonment on the aggravated assault conviction; these terms were ordered to run concurrently to the term imposed on the murder conviction.
Defendant appealed, arguing, among other things, that he was denied the effective assistance of counsel because his attorney did not request a Wade*fn1 hearing. We affirmed on December 12, 1989 by way of an unpublished opinion. Docket No. A-2262-87T4. The Supreme Court denied defendant's petition for certification on July 10, 1990. 122 N.J. 323 (1990).
Defendant filed a post-conviction relief (PCR) petition, which was denied by the trial judge on June 24, 1991. In our unpublished opinion of March 4, 1994, we affirmed the denial of that PCR petition. Docket No. A-0395-91T4. We observed that defendant's claims of ineffective assistance of counsel, which "relat[ed] to the Wade issue, the issue with respect to the jury charge on identification, and the mug shot issue," had been decided on defendant's direct appeal. We also recognized that defendant had made additional arguments that he had been denied the effective assistance of counsel that were not raised in direct appeal. These claims related to his counsel's: "advice not to testify; failure to properly prepare or obtain evidence or witnesses and to fully investigate and obtain records of [a co-defendant's] medical history and to obtain all the plea agreements; [and] the failure to request a severance." We concluded that there was "no basis . . . for not applying the bar of R. 3:22-4." In addition, we observed that the trial judge had ruled on the merits of these claims and affirmed for the reasons expressed by the trial judge in his oral decision. The Supreme Court denied defendant's petition for certification on July 13, 1994. 137 N.J. 316.
Defendant's second PCR petition was denied on September 14, 1995. On appeal, defendant argued that (1) he was denied his state and federal constitutional rights to a fair trial and due process because "of the trial court's failure to caution the jury sua sponte, on the limited admissibility of [a co-defendant's] guilty plea"; (2) the trial judge's instruction regarding other crime evidence was erroneous; (3) the prosecutor made "improper and highly prejudicial" comments regarding a bullet proof vest; (4) the trial judge erred by allowing "counsel to cross-examine the State's key witness, regarding other robberies and shootings [that the witness] alleged defendant and his co-defendants committed with and without him, and allowed the State to introduce the bullet proof vest without first conducting an [N.J.R.E. 104] hearing"; (5) he was denied the effective assistance of counsel; (6) the trial court "failed to produce defendant at the [PCR] hearing; and (7) his conviction "must be vacated for all errors in the trial." By an unpublished opinion filed on January 13, 1998, we found no merit in any of these contentions, and held them to be procedurally barred by R. 3:22-5 and R. 3:22-12, noting that "all of [these issues] could or should have been raised on his direct appeal, and some . . . were raised and decided adversely to his position on his earlier two appeals." Docket No. A-6528-95T2. Defendant's petition for certification was denied on April 24, 1998. 153 N.J. 404.
Defendant thereafter sought the issuance of a writ of habeas corpus from the United States District Court for the District of New Jersey. That petition was denied, but without prejudice, on May 10, 2000. A later filed amended petition was denied on June 23, 2004. The United States Court of Appeals for the Third Circuit affirmed that order on January 21, 2005.
Defendant filed a third PCR petition, which Judge Thomas R. Vena denied on May 12, 2006 for reasons expressed in a written opinion. Defendant filed this appeal, presenting the following arguments for our consideration:
I. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO CONVEY A PLEA OFFER EXTENDED TO DEFENDANT BY THE STATE AND FAILED TO INFORM DEFENDANT OF THE MANDATORY NATURE OF HIS SENTENCE.
II. DEFENDANT-APPELLANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHICH WARRANTS AN EVIDENTIARY HEARING.
III. JUDGE VENA COMMITTED REVERSIBLE ERROR IN SETTING FORTH THAT THE POST-CONVICTION RELIEF APPLICATION WAS TIME BARRED.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).