December 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEX RUIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 98-06-0638-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Winkelstein and Gilroy.
Defendant, Alex Ruiz, appeals from Judge Subryan's April 2, 2007 order denying his petition for post-conviction relief (PCR). On appeal, he presents the following arguments:
POINT I THE PCR COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS HIS TRIAL ATTORNEY FAILED TO INFORM HIM OF HIS SENTENCING EXPOSURE, INCLUDING THE PAROLE REQUIREMENTS OF THE NO EARLY RELEASE ACT.
POINT II THE PCR COURT ERRED IN NOT GRANTING DEFENDANT'S PCR MOTION BECAUSE DEFENDANT'S PLEA WAS NOT VOLUNTARY.
POINT III THE PCR COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR PCR BECAUSE HIS TRIAL ATTORNEY FAILED TO ARGUE ALL APPLICABLE MITIGATING FACTORS IN SUPPORT OF HIS SENTENCE.
POINT IV THE PCR COURT ERRED BY NOT FINDING THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT V THE PCR COURT ERRED IN DENYING ALL THE REQUESTS FOR RELIEF RAISED IN DEFENDANT'S PRO SE BRIEF.
We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
On March 13, 1998, defendant fired a handgun into a group of people involved in a fistfight, killing Juan Calipso. A Passaic County Grand Jury subsequently indicted defendant, charging him with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (counts three and five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2 (count seven).
On December 3, 1998, defendant pleaded guilty to count one, amended to aggravated manslaughter, and to count three. Although defendant acknowledged that he read and spoke English, he requested and was provided with a Spanish interpreter at the time of the plea and during his interviews with his attorney.
The plea form that defendant signed states that he was aware that the maximum prison term the court could impose was thirty years on the aggravated manslaughter charge and ten years on the weapons charge. Under the terms of the plea agreement, the State agreed to recommend a twenty-year term on the aggravated manslaughter conviction, and a lesser concurrent sentence on the weapons charge. Defendant signed the plea form and also signed the NERA*fn1 form, acknowledging that he would have to serve seventeen years before becoming eligible for parole and that he was subject to a five-year period of parole supervision.
The court merged count three and count one, and sentenced defendant to an eighteen-year term of imprisonment on the aggravated manslaughter conviction, subject to NERA and the five-year period of parole supervision. The court dismissed the remaining counts.
On August 8, 2002, defendant filed a direct appeal, arguing that his sentence was excessive. The appeal was placed on the excessive sentencing calendar and by order of May 24, 2004, we affirmed. Defendant subsequently filed a pro se petition for post-conviction relief, and his assigned counsel later filed an amended petition.
After relaxing the five-year time bar on defendant's petition, R. 3:22-12, Judge Subryan issued a thirty-seven-page written opinion denying the petition. We affirm substantially for the reasons expressed in that opinion. The judge considered each argument and permitted defendant to address the court. Defendant, however, failed to establish a prima facie case of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Counsel's representation was not deficient as it did not fall below objective standards of reasonableness. State v. Martini, 160 N.J. 248, 264 (1999) (citing Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed. 2d at 693). Nor did defendant demonstrate that, even if counsel's performance was deficient, there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).