On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-01-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
Defendant Dionisio Osorio appeals from the August 31, 2006, order that denied his petition for post-conviction relief (PCR). He raises the following point on appeal:
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE DEFENDANT'S SENTENCING HEARING.
We have considered this argument in light of the record and applicable legal standards. We affirm.
On January 9, 2002, defendant pled guilty to a single-count accusation charging him with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Pursuant to a plea agreement with the State, defendant was to receive a twenty-year sentence with a ten-year period of parole ineligibility. In addition, the State agreed to dismiss in its entirety Camden County Indictment #1262-04-99, which charged defendant in twenty-five counts with various crimes including murder, felony murder, first-degree robbery, first-degree kidnapping, and other offenses. Defendant admitted that on the date in question, he possessed a kilogram of cocaine and delivered it to another person. During the plea colloquy, defendant acknowledged his knowing and voluntary waiver of his rights to indictment and trial, and further waived any right to appeal from the sentence imposed.*fn1
On February 22, 2002, defendant appeared for sentencing. Defense counsel advised the judge that "two criminal convictions in [defendant's] prior history going back to August and October of 1985 are not him." Counsel further noted, "I don't believe that it has an effect (sic) on the sentencing . . . . It is irrelevant to this matter, . . . but my client asserts it wasn't him." He contended that the "computer system" needed to be corrected "because it might have an impact downstream. Today, it doesn't."
The judge stated, "I agree that it did not affect my agreement or disagreement with the plea bargain," but further noted, "I have considered the fact that there were two minor offenses out of . . . New York . . . ." Defense counsel moved for sentencing "within the plea agreement."
Noting this was defendant's first indictable conviction, though he had been previously convicted for "promoting gambling" and "possession of a gambling record" in 1985, the judge found aggravating factors three, the risk defendant would commit another offense; six, the extent of his prior criminal record and the seriousness of the offenses for which he was convicted; nine, the need to deter defendant and others from violating the law; and eleven, the imposition of only a fine would be perceived as the costs of doing business. N.J.S.A. 2C:44-1(a)(3),(6), (9), and (11). He found no mitigating factors, N.J.S.A. 2C:44-1(b), and sentenced defendant to imprisonment for twenty years with a ten-year period of parole ineligibility.
Defendant did not appeal from his sentence, though he did file a motion for reduction of sentence on January 3, 2003, that was denied as untimely. On May 12, 2005, defendant filed a pro se PCR petition seeking reconsideration of his sentence. An amended verified petition was filed on May 18, 2006, in which defendant argued "that he received ineffective assistance of counsel at sentencing in that his attorney failed to argue any mitigating factors or request that the court consider any sentence for less time than the sentence specified in the plea agreement." Defendant sought an ...