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State v. Ortiz

March 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFONSO J. ORTIZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 94-09-1404-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges Wefing and Lyons.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Late one night in January 1994, defendant and two companions attacked a man on a street in New Brunswick. Their victim died from his injuries. Defendant was fifteen at the time of this assault and was originally charged as a juvenile with offenses which, if committed by an adult, would constitute robbery, N.J.S.A. 2C:15-1, and felony murder, N.J.S.A. 2C:11-3(a)(3). A waiver hearing was held at which defendant's mother and sister testified, as well as a correctional social worker. At the conclusion of the hearing, the court found that the State had met its burden. The case was referred to the Law Division, and defendant was indicted for murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

Defendant entered a negotiated plea of guilty to an amended charge of aggravated manslaughter, and the State agreed to recommend a custodial term of thirty years in prison, with a fifteen-year period of parole ineligibility. In January 1995 the trial court sentenced defendant in accordance with the State's recommendation.

Defendant appealed his sentence, and his appeal was heard on an Excessive Sentence Oral Argument calendar. After considering the arguments presented, we affirmed defendant's sentence as not excessive and not an abuse of the court's sentencing power. State v. Ortiz, No. A-4567-95T4 (App. Div. Oct. 16, 1996). Defendant petitioned the Supreme Court for certification, but his petition was denied. 149 N.J. 33 (1997).

In April 1998 defendant filed a motion for a reduction in his sentence. The court declined to hear his application as it was untimely under Rule 3:21-10(a).

In September 1998 defendant filed a petition for post-conviction relief. Counsel represented defendant in connection with this petition and argued that defendant's trial attorney had been ineffective for failing to put before the court at sentencing several mitigating factors. The trial court denied defendant's petition. Defendant appealed to this court, and we affirmed. State v. Ortiz, No. A-1746-00T4 (App. Div. July 12, 2002). Defendant petitioned the Supreme Court for certification, but his petition was denied. 175 N.J. 76 (2002).

In February 2005, more than ten years after defendant's conviction, he filed a second petition for post-conviction relief. Counsel was again assigned to represent defendant. Defendant argued that his counsel had been ineffective at various stages of the proceeding, including the waiver hearing, at sentencing, on appeal, and on his initial petition for post-conviction relief. After hearing oral argument, the trial court denied defendant's petition. This appeal followed.

Defendant presents the following arguments on appeal:

POINT I.

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ...


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