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State v. Rosado

January 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN ROSADO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-04-0349.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 17, 2008

Before Judges C.L. Miniman and King.

Defendant Kelvin Rosado appeals from a November 15, 2006, order denying his April 21, 2006, pro se application for post-conviction relief (PCR) from a November 6, 2000, judgment of conviction and order for commitment. In the earlier proceeding, defendant pled guilty to two counts of armed robbery and was sentenced to a twelve-year term of imprisonment on each count, to be served concurrently.*fn1 Because the issues defendant raises in his PCR application either lack merit or are procedurally barred, we affirm.

In his application for PCR, defendant asserted that his trial counsel was constitutionally ineffective because he "did not effectively argue on behalf of petition for a lesser sentence of [ten] years" and did not fully explain the terms of the plea agreement. Defendant next claimed that the court erred, first in accepting his plea because it "was not made voluntarily or with a full understanding of the penal consequences," and second in sentencing him to an unconstitutional and illegal sentence. Finally, defendant urged that he was denied the effective assistance of appellate counsel because that attorney "failed to raise the winning issues on a direct appeal [and] failed to argue effectively the illegality of petitioner's sentence." Defendant asked the judge to vacate the sentence and schedule a new sentencing hearing.

The PCR judge denied the relief requested on the ground that the transcript of the plea hearing clearly demonstrated that defendant understood the plea, the sentence, and the penal consequences of the NERA parole disqualifier. He observed that defendant established an adequate factual basis for the convictions and concluded that defendant received a good plea bargain. He also found that the sentence was upheld on appeal and could not be revisited but, even if it could be revisited, it was within the sentencing range and not illegal. The judge also determined that there was nothing in the record to demonstrate ineffective assistance of counsel. Finally, he observed that there was no legal basis to permit a downward modification of the sentence from twelve years to ten and denied the PCR application. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II - THE TRIAL COURT ERRONEOUSLY ACCEPTED DEFENDANT'S GUILTY PLEAS, AS THEY WERE NOT GIVEN KNOWINGLY AND INTELLIGENTLY.

POINT III - DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL.

POINT IV - PROCEDURAL BARS AGAINST POST-CONVICTION RELIEF DO NOT APPLY.

POINT V - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.

The scope of our review of a ruling on a PCR application is generally de novo, although "[t]he factual findings underpinning the[] legal conclusions are reviewed for clear error." State v. Harris, 181 N.J. 391, 420-21 (2004) (internal quotation omitted), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). Of course, "credibility determinations are given greater deference unlike the evaluation of the documentary record." Id. at ...


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