On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 91-12-1104, 92-09-00856, 93-02-00166.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Sabatino.
Defendant Ismael Otero appeals from an order dated June 25, 2004, denying his petition for post-conviction relief (PCR), which sought to correct an illegal sentence in connection with Indictment No. 93-02-00166. On appeal, defendant presents the following arguments:
POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING PETITIONER-APPELLANT'S MOTION FOR DEFAULT OR, IN THE ALTERNATIVE, TO ADJOURN THE MATTER TO PERMIT PETITIONER-APPELLANT AN OPPORTUNITY TO REVIEW THE OPPOSITION FILED BY THE STATE.
POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE EVIDENCE AT DEFENDANT'S PLEA COLLOQUY CLEARLY DISCLOSED THAT DEFENDANT FAILED TO ENTER THE PLEA WITH FULL KNOWLEDGE OF THE PENAL CONSEQUENCES OF THE PLEA.
A. THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE PETITIONER-APPELLANT CLEARLY PROVED THAT HE WAS UNAWARE OF THE MERGER CONSEQUENCES OF HIS PLEA THEREBY RENDERING THE PLEA INVALID AND ANY SENTENCE IMPOSED THERETO ILLEGAL PURSUANT TO RULE 3:22-2.
B. DEFENDANT DID NOT WAIVE THE ISSUE OF MERGER FOR SENTENCING PURPOSES SINCE TRIAL COUNSEL WAS CLEARLY INEFFECTIVE IN FAILING TO ADVISE DEFENDANT OF THE WAIVER IMPLICATIONS OF HIS PLEA.
C. THE MATTER SHOULD BE REVERSED AND REMANDED SO THAT A FULL TESTIMONIAL HEARING MAY BE CONDUCTED RELATING TO THE ISSUE OF WHETHER OR NOT DEFENDANT WAS ADVISED OF THE ISSUE OF MERGER AND WHETHER OR NOT HE KNOWINGLY WAIVED THE ISSUE FOR APPEAL PURPOSES.
POINT III THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM IN POST-CONVICTION PROCEEDING.
Pursuant to a plea agreement involving three separate indictments, defendant entered guilty pleas to second-degree sexual assault upon J.C., a child less than thirteen years of age, N.J.S.A. 2C:14-2(b) (count four of Indictment No. 93-02- 0166) and third-degree endangering the welfare of J.C. by engaging "in sexual conduct which would impair or debauch the morals of the child," N.J.S.A. 2C:24-4(a) (count five of the same indictment). At sentencing on November 12, 1993, the court imposed a seventeen-year prison term with seven years of parole ineligibility on another indictment (No. 91-12-1104); a concurrent ten-year prison term on count four of Indictment No. 93-02-00166; and a consecutive five-year prison term on count five.
In his certification in support of his motion to correct an illegal sentence, and on appeal, defendant claims his conviction for endangering the welfare of J.C. must necessarily merge with his sexual assault conviction because "there was only one incident with J.C. and it was a sexual incident . . . . Once the factual basis is reviewed, it is clear that the court accepted the factual basis for charges that were based on the same victim at the same time." The State does not disagree.
See State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992) (holding that endangering conviction had to be merged into sexual assault conviction "where the record suggests no basis for the ...