On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Reisner and Alvarez.
This appeal is from the denial on June 26, 2007, of defendant Carlos Perez-Inga's petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On appeal, defendant raises the following points:
POINT I IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.
POINT II IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESSES SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING.
POINT III IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE APPELLATE ATTORNEY TO FAIL TO RAISE THE ISSUE OF TRIAL COUNSEL'S FAILURE TO REVIEW THE PRE-SENTENCE REPORT WITH THE DEFENDANT.
On February 23, 2004, defendant entered a guilty plea to second-degree aggravated assault, N.J.S.A. 2C:12-1(b), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), in exchange for a Rule 3:9-3(c) non-negotiated aggregate sentence of eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State originally extended an offer of ten years subject to NERA in exchange for defendant's guilty plea. The judge, after in-chambers discussions with counsel, indicated that he would sentence defendant to eight years subject to NERA. The judge signed the appropriate fourth page to the LR-28 plea form, and the parties' understanding was placed on the record. Originally, defendant was also charged with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and making terroristic threats, N.J.S.A. 2C:12-3(a). When defendant entered his guilty plea, he acknowledged under oath that he stabbed his wife approximately eleven times with a kitchen knife, causing her serious bodily injury, including a collapsed lung.
Defendant was sentenced on April 30, 2004. At the sentencing hearing, defendant told the court that he was "brought to this country under lies by my wife." He said that when he arrived from Peru with their children he learned "that she was living with another man." He claimed that that she "started the attack." He admitted that he "lost control" and asked the court to reduce the sentence to seven years of imprisonment subject to NERA.
The judge noted that defendant acknowledged having caused serious bodily injury to his wife as a result of inflicting multiple stab wounds. The court went on to find that defendant had no prior criminal history, and sentenced defendant in accord with the non-negotiated plea agreement. The court indicated that because of the victim's life-threatening injuries, it would not sentence defendant to less than eight years. The judge found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (a)(9), as well as mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), defendant's lack of a prior criminal history.
We remanded the matter on September 21, 2005, pursuant to State v. Natale, 184 N.J. 458 (2005), after a Rule 2:10-3 excessive sentence review. A resentencing hearing was accordingly conducted on March 30, 2006, and the same eight-year term subject to NERA was imposed. The matter was listed a second time for the excessive sentencing calendar, and was affirmed on August 8, 2006. On November 15, 2006, the Supreme Court denied certification. State v. Perez-Inga, 188 N.J. 578 (2006).
On September 25, 2006, and November 27, 2006, defendant pro se filed papers requesting PCR. Counsel was assigned on January 10, 2007, and a brief was filed thereafter supplementing defendant's PCR pleadings. The matter was heard on June 7, ...