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State v. Ramos

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED JOSEPH RAMOS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-01-1526.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 17, 2009

Before Judges Fuentes and Gilroy.

Defendant Fred Joseph Ramos appeals from the order of the Law Division, Criminal Part, denying his post-conviction relief (PCR) petition. We affirm.

Defendant was tried before a jury and convicted on March 23, 1995, of first-degree armed robbery, N.J.S.A. 2C:15-1. The jury also acquitted defendant of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third- degree unlawful possession of a handgun without the required permit, N.J.S.A. 2C:39-5(b). On May 12, 1995, the court sentenced defendant to an extended term of forty years, with twenty years of parole ineligibility.

On defendant's direct appeal, we affirmed the conviction and sentence. State v. Fred Joseph Ramos, No. A-6090-94, (App. Div. May 20, 1996). On August 29, 2005, defendant filed an unverified PCR petition, seeking a relaxation of the five-year bar in Rule 3:22-12(a), alleging excusable neglect, and requesting an evidentiary hearing. The trial court denied the petition as time-barred.

The court explained its reasoning for denying the petition in a memorandum of opinion dated September 26, 2005. After reviewing defendant's allegations and applicable law, the court found that defendant "never actually raised any of the four grounds for post-conviction relief laid out in R. 3:22-2." The court reached this decision, however, without notice to the State, and without referring the petition to the Public Defender's Office for assignment of counsel.

Acting on defendant's appeal, we summarily reversed the trial court order sua sponte pursuant to Rule 2:8-2(b), and remanded the matter for referral to the Public Defender's Office for assignment of counsel. Our ruling was memorialized in an order dated May 24, 2006.

Thereafter, through assigned counsel, defendant filed an amended PCR petition alleging as grounds for relief ineffective assistance of trial and appellate counsel, and denial of both a fair trial and a fair sentencing hearing. After the State responded, the petition came for adjudication before Judge Roma on June 29, 2007.

After hearing argument of counsel and reviewing defendant's amended petition, Judge Roma issued a memorandum of opinion dated July 2, 2007, finding defendant's application for relief was time-barred under Rule 3:22-12(a). Even without this procedural impediment, Judge Roma concluded that defendant had not establish a prima facie case of ineffective assistance of trial or appellate counsel. It is from this order that defendant now appeals raising the following arguments:

POINT I.

THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TIME-BARRED.

POINT II.

THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AS DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BASED UPON TRIAL COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT IN SUMMATION.

B. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF TRIAL COUNSEL TO CALL A WITNESS WHO HAD GIVEN AN EXCULPATORY STATEMENT TO POLICE.

POINT III.

THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

POINT IV.

THE DEFENDANT['S] SENTENCE MUST BE VACATED AS THE TRIAL COURT CONSIDERED INAPPLICABLE AGGRAVATING FACTORS AND FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS.

POINT V.

DEFENDANT'S SENTENCE MUST BE VACATED AND DEFENDANT MUST BE RESENTENCED IN ACCORDANCE WITH THE HOLDING IN STATE V. PIERCE.

POINT VI.

THE TRIAL COURT'S IMPOSITION OF A PAROLE DISQUALIFIER PURSUANT TO THE GRAVES ACT CONSTITUTED AN ILLEGAL SENTENCE AS IT CONTROVERTED THE JURY'S FINDING THAT DEFENDANT DID NOT POSSESS A HANDGUN DURING THE COMMISSION OF THE INSTANT OFFENSE.

We reject these arguments and affirm substantially for the reasons expressed by Judge Roma in his July 2, 2007, memorandum of opinion. Defendant's PCR petition is clearly time-barred under Rule 3:22-12(a) because it was filed more than five years after final judgment at trial, and defendant has not presented any evidence from which to find the excusable neglect necessary to relax the rule's time restriction. State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009).

Affirmed.

20090708

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