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State v. Serrano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RONALD SERRANO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment Nos. 02-02-0327, 02-11-2553 and 02-07-1546.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2009

Before Judges Rodríguez and Reisner.

Petitioner Ronald Serrano appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

Petitioner entered a negotiated plea of guilty to three charges contained in three different indictments: first-degree robbery, N.J.S.A. 2C:15-1; third-degree burglary, N.J.S.A. 2C:18-2; and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The State agreed to recommend that all sentences run concurrent and that the aggregate sentence not exceed fifteen years subject to a NERA*fn1 parole disqualifier. Judge Mark Nelson imposed a fifteen-year sentence subject to a NERA parole disqualifier on the robbery count, a concurrent five-year term on the burglary count, and a concurrent three-year term on the CDS count. Subsequently, Judge Sheila A. Venable re-imposed the same term at a re- sentencing hearing, pursuant to State v. Natale, 184 N.J. 458 (2005).

Petitioner challenged his sentence. We affirmed. State v. Serrano, No. A-6128-03T4 (App. Div. August 3, 2006). Defendant filed a pro se first petition for PCR. Judge Peter J. Vazquez assigned counsel. We have not been provided with a copy of the PCR petition nor any supporting briefs. However, we glean from Judge Barry P. Sarkisian's decision that petitioner alleged that: (1) Judge Nelson erred by applying "the Graves Act [N.J.S.A. 2C:43-6c to -6d] to petitioner's sentence;" (2) trial counsel rendered ineffective assistance by "advising petitioner to acknowledge a plea to a Graves Act offense;" (3) Judge Nelson erred by imposing a NERA parole disqualifier; and (4) trial counsel was ineffective for "failing to advocate for the inapplicability of NERA to petitioner's sentence."

Judge Sarkisian determined that petitioner did not make a sufficient showing to require an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App Div. 1999). In a written opinion dated July 2, 2008, Judge Sarkisian rejected petitioner's four contentions and denied the petition. The judge first discussed the applicable standard for considering a PCR petition as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). The judge then found:

In this case, the actions taken by petitioner's counsel must be examined in two steps. First, under Strickland, counsel's errors need to be so serious as to deprive the defendant a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. at 687. Here, defense counsel at the plea stage had the petitioner sign a Graves Act form and may have incorrectly informed his client that Graves Act applied and have him sign the Graves Act form. However, it should also be noted that this misstatement would not have at all affected the plea offer at the time for the robbery offense because NERA overrode any other penalties that could apply. And it is clear that defense counsel did make petitioner aware that NERA would apply to his offer. Hence, defendant has not met his burden to demonstrate that he received such serious ineffectiveness of counsel.

Second, and more importantly, petitioner has not proved that there is a [reasonable probability] that, but for counsel's errors, the petitioner would not have pled guilty and would have insisted on going to trial. There simply have been no affidavits, certifications, or factual premises to this effect. State v. DiFrisco, 137 N.J. 434, 457 (1994). In fact, it is quite the opposite. According to the plea transcript excerpt above, it is very clear that petitioner was aware that he would be receiving a penalty subject to NERA, making sure that 85 percent parole ineligibility applied to this robbery charge.

Accordingly, petitioner has not made a prima facie case for ineffective assistance of counsel. There is also no reasonable probability that, but for the counsel's error, the outcome of the proceeding would have been different.

On appeal, petitioner contends:

I. THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANT'S APPLICATION FOR [PCR].

II. THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR [PCR] BECAUSE TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE TO DEFENDANT.

III. THE COURT ABUSED ITS DISCRETION IN FAILING TO FIND THAT THE SENTENCE IMPOSED WAS NOT MANIFESTLY EXCESSIVE.

IV. THE APPELLATE COURT SHOULD NOT DENY RELIEF BECAUSE [DEFENDANT'S] FAILURE TO FILE WITHIN FIVE YEARS OF HIS CONVICTION WAS EXCUSABLE AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

First, we note that we are perplexed by petitioner's arguments regarding: (1) the inapplicability of the Graves Act and (2) the failure to file a timely PCR petition. From our careful review of the record, we agree with Judge Sarkisian that none of the sentences imposed by Judge Nelson were premised on the Graves Act. Moreover, the PCR petition was filed before January 2, 2008 when Judge Vazquez assigned PCR counsel. This date was within five years of the December 5, 2003 judgment of conviction.

Second, we agree with the analysis of Judge Sarkisian in denying the PCR petition. We found no basis to conclude that petitioner met his burden, pursuant to the Strickland/Fritz standard, of making a prima facie showing of ineffective assistance of trial counsel.

Lastly, we conclude from our careful review of the record, that the sentencing factors identified by Judge Venable are supported by the evidence. State v. Johnson, 42 N.J. 146, 161- 62 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364- 65 (1984).

Affirmed substantially for the reasons expressed by Judge Sarkisian in his July 2, 2008 written opinion.


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