November 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY BARILARO, DEFENDANT-APPELLANT.
On appeal from Superior Court of Jersey, Law Division, Gloucester County, 00-01-0025-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Weissbard and Baxter.
Defendant Timothy Barilaro appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
On May 15, 2000, defendant pled guilty to both counts of an indictment charging first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. At the time defendant entered his plea Judge Tomasello agreed that he would impose a fourteen-year state prison sentence "in recognition of the real time defendant will serve under NERA [No Early Release Act, N.J.S.A. 2C:44-1c(2)] and the offense circumstances." Defendant completed and signed a supplemental plea form for NERA cases at the time of his plea.
On June 23, 2000, defendant was sentenced, as promised, to a fourteen-year term, subject to NERA, for the robbery; the weapon possession charge was merged and dismissed.
Defendant appealed his sentence only. His appeal was heard on our excessive sentence calendar and affirmed by order of February 19, 2002. Defendant's petition for certification was denied on July 8, 2004. Defendant, represented by counsel, filed his PCR petition on December 23, 2005, more than five years after his sentence. In his petition, defendant alleged ineffective assistance of counsel at the time of his plea and sentencing.
On March 20, 2006, Judge Tomasello denied defendant's PCR petition. The State contended that the petition was untimely pursuant to R. 3:22-12(a). However, the judge declined to dismiss on procedural grounds, noting that the petition raised constitutional issues and, given the short delay in filing, defendant should "have his day in court" on the merits. After hearing argument, the judge denied the petition.
On this appeal, defendant raises the following arguments:
POINT I: THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE WHICH REQUIRES CORRECTION BECAUSE THE FACTS AVAILABLE ON THE RECORD DID NOT CONSTITUTE A VIOLENT CRIME WITHIN THE DEFINITION OF THE 1997 NO EARLY RELEASE ACT.
POINT II: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE APPLICATION OF THE NO EARLY RELEASE ACT TO HIS SENTENCE REQUIRING HIS PLEA BE VACATED AND REMAND GIVEN FOR A NEW TRIAL.
POINT III: DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING A REMAND FOR AN EVIDENTIARY HEARING.
POINT IV: A SENTENCE REDUCTION IS REQUIRED BECAUSE THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S FAILURE TO ARGUE BLATANT MITIGATING FACTORS THAT WOULD HAVE SUBSTANTIALLY EFFECTED THE LENGTH OF SENTENCE.
Having reviewed those claims in light of the record and applicable law, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Tomasello correctly found no need for an evidentiary hearing and further found that defendant's plea colloquy with Judge Lisa on May 15, 2000, set forth an adequate factual basis to satisfy NERA as it existed at that time. After conducting our own review of the plea hearing, we fully agree with Judge Tomasello's analysis.
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