On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-12-3000.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant, Ulises Cruz, appeals from a final order, dated April 5, 2007, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The relevant facts, derived from defendant's admissions at the plea hearing, can be briefly stated. On August 6, 1993, defendant went with Leonardo Perez and Luis Reyes to a residence in Camden. They went there to confront Yvette Ways and Dwayne Jackson regarding an item defendant believed they took from him. Over approximately ten to fifteen minutes, defendant, Perez, and Reyes severely beat Ways and Jackson with various weapons including handguns, a two-by-four, and broom handles. They also threw paint, bleach and ammonia on the victims and prevented them from leaving the house.
Perez left the house and returned with a can of gasoline, which he dumped on the beaten victims. He then set them on fire. Defendant watched Perez take these actions, and did nothing to stop him. Both victims were severely burned, and Yvette Ways later died as a result of her injuries.
In an indictment filed in November 1994, a Camden County grand jury charged defendant with: conspiracy to commit murder or first-degree kidnapping in violation of N.J.S.A. 2C:11-2 or N.J.S.A. 2C:13-1 and N.J.S.A. 2C:5-2 (count one); first-degree murder in violation of 2C:11-3(a)(1) and (2) (count two); first-degree felony murder in violation of N.J.S.A. 2C:11-3(a)(3) (count four); first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b)(1) and (2) (counts five and six); first-degree attempted murder in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count seven); second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1) (count eight); third-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(2) (count nine); second-degree aggravated arson in violation of N.J.S.A. 2C:17-1(a) (count ten); second-degree possession of a weapon for unlawful purpose in violation of N.J.S.A. 2C:29-4(a) (count eleven); and, third-degree unlawful possession of a weapon (handgun) in violation of N.J.S.A. 2C:39-5(b) (count twelve).
On February 7, 1997, defendant entered a plea agreement pursuant to which all but four counts would be dismissed. Defendant agreed to plead guilty to those remaining four counts: count two, as amended from first-degree murder to first-degree aggravated manslaughter; counts five and six, first-degree kidnapping; and, count eight, second-degree aggravated assault. The State agreed to recommend a sentence of thirty years imprisonment, twelve and a half years without parole, on count two. That sentence was to run consecutively to a recommended sentence of fifteen years imprisonment, five years without parole, on count six. The State further agreed to recommend that both the above sentences run concurrently with a term of fifteen years on count five and a term of seven years on count eight. Hence, the aggregate sentence under the plea agreement was to be forty-five years imprisonment, with seventeen and a half years of parole ineligibility. Defendant stated before the judge who accepted his plea of guilty that he was aware of the charges and the recommended sentence, and that he was guilty of those charges.
On March 21, 1997, the judge sentenced defendant, in accordance with the plea agreement, to forty-five years imprisonment, seventeen and a half years without parole. Defendant filed a direct appeal challenging the consecutive aspect of the sentence, and on January 12, 2000, his appeal was heard before an Excessive Sentencing Oral Arguments (ESOA) panel of this court. The panel affirmed the sentence, concluding that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."
On January 11, 2006, almost nine years after the judgment of conviction was entered and six years after the sentence was affirmed, defendant filed a pro se petition for PCR. Appointed counsel filed a brief in support of the petition, and on March 23, 2007, the PCR judge heard oral arguments to determine whether a prima facie case had been presented to warrant an evidentiary hearing. At the conclusion of the oral arguments, the judge denied the petition, finding not only that the motion was procedurally time-barred, but also, that, contrary to defendant's assertion, there was a factual basis to support the plea agreement. The judge also ruled that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004)*fn1, and State v. Natale, 184 N.J. 458 (2005)*fn2 do not apply to this case. Defendant filed his notice of appeal on July 18, 2007.
On appeal, defendant raises the following points for our consideration:
POINT I: DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE AN INADEQUATE FACTUAL BASIS EXISTED TO SUPPORT DEFENDANT'S PLEA OF GUILTY TO AGGRAVATED MANSLAUGHTER AND APPELLATE COUNSEL FAILED TO CHALLENGE SUCH AGREEMENT.
POINT II: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF THE LAW AND RECEIVED AN ILLEGAL SENTENCE SINCE THE COURT FOUND THE PRESENCE OF AGGRAVATING FACTORS ...