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State v. Perez

May 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROQUE PEREZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0338.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Lihotz and Messano.

Defendant Roque Perez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:

POINT I.

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II.

THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANTS' (sic) APPLICATION FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant was indicted by the Atlantic County grand jury and charged with the first-degree aggravated manslaughter of his brother, Honorio Ramirez-Juarez, N.J.S.A. 2C:11-4(a); second-degree vehicular homicide of Ramirez-Juarez, N.J.S.A. 2C:11-5; second-degree aggravated assault of his cousin, Maribel Jimenez, N.J.S.A. 2C:12-1(b)(1); and third-degree assault by auto of Jimenez, N.J.S.A. 2C:12-1(c)(2).*fn1 On September 20, 2004, defendant pled guilty to aggravated manslaughter, second-degree aggravated assault, and driving while intoxicated (DWI). In return, the State agreed to dismiss the remaining counts of the indictment, as well as the other motor vehicle summonses issued. The State further agreed to recommend concurrent sentences of ten years on the aggravated manslaughter count, and five years on the aggravated assault count. Defense counsel acknowledged that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied.

Through the services of a Spanish interpreter, under oath, defendant admitted that on the night in question, he was drinking with his brother until 2:30 or 3:00 a.m. They were both "rather drunk." With his brother and his cousin as passengers, defendant drove from the bar, acknowledging that he was "too drunk to operate the car[,]" and further admitting that his BAC was .16 or "about twice the legal limit."*fn2 Defendant admitted that he was driving at least seventy miles per hour, and going so fast that he lost control of the car. After striking the middle road barrier, the car went "off the road and str[uck] parked cars in [an] auto dealership[.]" As a result, his brother was killed and his cousin was seriously injured. Defendant conceded that the accident was caused by his "alcohol consumption," and his "excessive speed."

On November 5, 2004, defendant appeared for sentencing. Over the State's objection, the judge agreed to consider a letter written by Jimenez. In it, he claimed that defendant was being "tickl[ed] near his underarms" by his brother who was in the front passenger seat at the time. As a result, Jimenez claimed defendant "lost a few minutes of concentration while he was driving which made him lose control of his car[.]" Defense counsel requested that the judge honor the plea bargain struck with the State. He did, and imposed an aggregate sentence of ten years in prison with an 85% parole disqualifier.

Defendant twice moved pro se claiming he received an illegal sentence. These motions were denied, and we summarily affirmed those orders. State v. Roque Perez, No. A-2587-05 (App. Div. April 28, 2006). On June 27, 2006, defendant filed a pro se PCR petition alleging ineffective assistance of counsel in that his trial counsel "induced [him] to plead guilty to a more serious crime of aggravated manslaughter, rather then (sic) having [him] plead guilty to the lesser included charge of vehicular homicide[.]" Defendant also claimed his trial counsel provided ineffective assistance by "not ...


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