August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARMELLO MARTINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 85-06-2614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 6, 2010
Before Judges Stern and Skillman.
We affirm the denial of defendant's second petition for post conviction relief (PCR) substantially for the reasons expressed by Judge Donald J. Volkert, Jr. in his letter opinion of October 16, 2007.
Defendant asserts he was denied the effective assistance of counsel on appeal following his sentencing on January 23, 1986, and thereafter on his first PCR appeal and on the second PCR petition because trial counsel failed to argue there was no basis in the record to support the finding of aggravating factor one in this murder case. See N.J.S.A. 2C:44-1(a)(1). An excessive sentence issue is not cognizable on a PCR. See State v. Ervin, 241 N.J. Super. 458, 470-72 (App. Div. 1989) certif. denied, 121 N.J. 634 (1990); State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Moreover, to the extent defendant distinguishes these precedents by arguing that counsel was ineffective because he or she did not raise the issue in a timely fashion, we note that, given our scope of review on a sentencing issue, we reject the contention on the merits. See e.g., State v. Bieniek, 200 N.J. 601, 607-09 (2010); State v. Ghertler, 114 N.J. 383, 388 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).*fn1