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State v. Marcelino

March 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LUIS MARCELINO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-05-0666.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Skillman and Yannotti.

Defendant Luis Marcelino appeals from an order entered on June 21, 2006, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Middlesex County Indictment No. 03-05-666 with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count five); and fourth-degree hindering investigation, N.J.S.A. 2C:29-3b(4) (count six).

Defendant also was charged under Middlesex County Indictment No. 03-05-0601 with fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d.

On November 13, 2003, at a hearing before Judge Jane B. Cantor, defendant pled guilty to first-degree armed robbery, as charged in count two of Indictment No. 03-05-0666. The State agreed to dismiss all remaining counts of that indictment and the charge in Indictment No. 03-05-0601. The State also agreed to recommend that defendant be sentenced as a second-degree offender to a nine-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

At the plea hearing, defendant responded to the court's questions with the assistance of an interpreter. He asserted that the plea form had been translated into Spanish for him and he understood it. Defendant stated that he was not under the influence of any drug or narcotic. He also stated that his attorney had answered all of the questions he had about the plea and he was satisfied with the advice that had been given to him.

Defendant then provided the court with the factual basis for his plea. Defendant asserted that on December 23, 2002, he was in Woodbridge, New Jersey with co-defendant Alexandro Sanchez. They got into a taxi that was being driven by Andres Valdez. Defendant placed a chain around the driver's neck and Sanchez asked the driver for money. Sanchez had a knife in his possession. The driver gave Sanchez $40. Defendant and Sanchez got out of the car and left. The judge found that there was an adequate factual basis for the plea, and that it had been entered knowingly and voluntarily.

Judge Cantor sentenced defendant on January 26, 2004. The judge found an aggravating factor under N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law), and a mitigating factor under N.J.S.A. 2C:44-1b(7) (defendant has no history of criminal activity and has led a law-abiding life for a substantial period of time before committing the present offense). The judge found that the aggravating factor balanced the mitigating factor. She sentenced defendant in accordance with the plea.

On April 25, 2005, defendant filed a pro se petition for PCR. He raised the following issues:

POINT I:

The defendant was denied [the] effective assistance of counsel.

POINT II: The sentence imposed is manifestly excessive.

POINT III: The sentence imposed is illegal and unconstitutional in violation of the Sixth Amendment of the United States Constitution based on the Blakely decision.*fn1

POINT IV: The defendant was denied the right to speak with the Mexican Consulate[, which was] a clear violation of ...


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