May 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRUTO OQUENDO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-05-1401.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2009
Before Judges Sapp-Peterson and Alvarez.
Defendant Fruto Oquendo appeals from an order dated June 9, 2006, denying his petition for post-conviction relief (PCR). On appeal, defendant presents the following arguments:
THERE WAS AN INADEQUATE FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA TO ATTEMPTED MURDER, AND DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, ON DIRECT APPEAL AND ON POST-CONVICTION RELIEF (NOT RAISED BELOW).
THE TRIAL COURT IMPOSED AN INCORRECT, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL SENTENCE, AND THE FAILURE OF TRIAL AND APPELLATE COUNSEL TO PROPERLY RAISE AND ARGUE THIS ISSUE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
THE FAILURE OF THE TRIAL JUDGE TO RECUSE AT THE PCR HEARING REQUIRES REMAND FOR A NEW PCR HEARING BEFORE ANOTHER JUDGE.
SINCE THE SENTENCE IMPOSED BY THE TRIAL COURT UTILIZED INAPPLICABLE AGGRAVATING FACTORS AND FAILED TO ADEQUATELY CONSIDER APPLICABLE MITIGATING FACTORS, IT IS IN EXCESS OF OR OTHERWISE NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY LAW AND THEREFORE ILLEGAL; THE MATTER MUST BE REMANDED FOR RESENTENCING. THE FAILURE OF TRIAL AND APPELLATE COUNSEL TO PROPERLY RAISE AND ARGUE THIS ISSUE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
After considering these contentions in light of the record, the applicable law, and the motion court's findings and conclusions, we are satisfied that defendant's arguments do not warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). We agree with the motion court's assessment of defendant's petition and affirm substantially for the reasons stated in his oral decision rendered on May 22, 2006. We add only the following brief comments.
On November 8, 2001, defendant entered a guilty plea to first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second-degree attempted kidnapping, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:5-1; and third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). The recommended sentence was a maximum aggregate of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was actually sentenced to fourteen years, not the fifteen called for by the negotiated plea agreement. On the attempted murder, defendant was also sentenced to sixty months of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c). Defendant's only direct appeal related to his sentence pursuant to Rule 2:9-11. He was denied relief, and the Supreme Court denied certification. State v. Oquendo, 176 N.J. 72 (2003).
The charges arise from the shooting of Eric Rodriquez, whom co-defendant Edwin Casiano, Jr., believed was having an affair with Casiano's wife. Defendant and Casiano planned to kidnap Rodriguez, and in aid of the plan, defendant armed himself with a nine-millimeter Beretta. When defendant and Casiano encountered the victim, however, Rodriguez resisted. Defendant approached Rodriquez and from a distance of about five feet, showed him the gun and instructed him to get into a waiting car.
The victim refused.
When the plea was taken, defendant was less than forthcoming in establishing his factual basis. He acknowledged, however, having shot at the victim repeatedly at close range. Point I of defendant's brief, the attack on the adequacy of the factual basis of defendant's guilty plea, was not raised on direct appeal or in defendant's PCR application; nor was it argued to the PCR court. Defendant makes this contention without even attempting to cloak it in the garb of an ineffective assistance of counsel claim. This alleged error does not constitute any of the grounds cognizable for PCR enumerated in Rule 3:22-2.
Defendant obtained appellate review of errors allegedly committed by the trial judge in sentencing via the excessive sentence calendar. Rule 3:22-5 bars PCR where a petitioner previously addressed the same issues on direct appeal. Therefore, because the purported sentencing errors were already considered, defendant is barred from pursuing the issue further.
In any event, the claim that a sentencing judge relied upon inappropriate aggravating factors is not a basis to set aside a sentence on PCR. State v. Flores, 228 N.J. Super. 586, 594-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
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