On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 95-10-1331 and 96-05-0724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2009
Before Judges Baxter and Alvarez.
Defendant Hector Bautista appeals from the April 18, 2008 denial of his application for post-conviction relief (PCR). We affirm.
Defendant entered guilty pleas on February 9, 1998 to three counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5). Two of the robbery counts related to incidents that occurred on July 19, 1995 and were included in Bergen County Indictment No. S-724-96. The third count involved an August 16, 1995 incident and was charged in Bergen County Indictment No. S-1331-95.
In exchange for defendant's guilty pleas, the State agreed to recommend an aggregate eighteen-year sentence with a term of parole ineligibility not to exceed one-third of the base term. The written agreement included the following notation: "failure to appear for sentence = full exposure . . . any parole ineligibility period is at discretion of the court."
Defendant failed to appear for his May 15, 1998 sentence and remained a fugitive until December 3, 1998. On April 9, 1999, he unsuccessfully sought to withdraw his guilty pleas. On May 14, 1999, he was sentenced to three consecutive fifteen-year terms subject to five years of parole ineligibility on each. Defendant's total aggregate sentence was forty-five years, subject to fifteen years of parole ineligibility.
Because of the anomalous result that defendant received the then-presumptive midpoint of the range as well as a term of parole ineligibility, we remanded the matter for the sentencing judge to reconsider the sentence. State v. Bautista, No. A-5545-98 (App. Div. Feb. 5, 2001) (slip. op. at 5-6). After hearing arguments on remand, the sentencing judge on October 15, 2001 imposed the same aggregate sentence of a forty-five-year term with fifteen years of parole ineligibility. No appeal was taken from that decision.
Defendant's first petition for PCR was denied on March 25, 2003. The judge concluded that defendant was well-represented by trial counsel on the original agreement and that it was only defendant's failure to appear at his sentence hearing, a circumstance beyond his attorney's control, that led to the significantly greater sentence imposed. The first PCR judge also found that defendant's alleged cognitive shortcomings - attention deficit hyperactivity disorder and a low I.Q. - did not negate his "understanding of right and wrong," as reflected by the GED and various certificates that defendant earned while in state prison.
Significantly, the first PCR judge also addressed defendant's claim that the forty-five-year sentence was actually illegal because the sentencing judge failed to find additional mitigating factors. In a similar vein, defendant asserted that the sentences should have been concurrent because the conduct was a "spree." The judge found no impropriety on either grounds, although the judge's actual reasoning appeared to address the merits of the sentence based on the fact that defendant was sentenced for three separate acts of violence perpetrated on three separate victims at separate places, instead of any purported illegality.
On March 15, 2006, defendant filed a second PCR petition. It was subsequently withdrawn without prejudice.
Defendant filed a third PCR petition on October 30, 2006. Good cause was found to exist, and he was assigned counsel, as to his claim of ineffective assistance of trial counsel but not as to his claim of illegal sentencing. Assigned PCR counsel filed an amended verified PCR petition on February 19, 2008, which was denied without evidentiary hearing on April 18, 2008. It is this order from which appeal is taken.
In this third PCR petition, defendant alleged that neither the attorney who represented him on the resentence nor the attorney who represented him on his first PCR told him that he had the right to appeal those decisions. In addition to his own certification, defendant provided a certification from his mother stating that she had not been told that her son had the right to appeal the resentence decision, ...