February 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK PADRO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-05-0919.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Wefing and Payne.
Defendant, Frank Padro, appeals from a denial of his petition for post-conviction relief (PCR). On appeal, he raises issues that were not raised before the PCR judge, consisting of the following:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS POST-CONVICTION RELIEF ATTORNEY BECAUSE HE FAILED TO CHALLENGE DEFENDANT'S CUMBERLAND COUNTY CONVICTION AS A STRIKE THAT MANDATED A LIFE SENTENCE WITHOUT PAROLE. (NOT RAISED BELOW.)
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY WHEN HE FAILED TO CHALLENGE DEFENDANT'S CUMBERLAND COUNTY CONVICTION AS A STRIKE TO BE USED BY THE COURT IN IMPOSING A LIFE SENTENCE WITHOUT PAROLE. (NOT RAISED BELOW AT PCR HEARING.)
DEFENDANT IS NOT PROCEDURALLY BARRED BY R. 3:22-5 FROM CHALLENGING THE LEGALITY OF HIS SENTENCE.
We deny PCR.
In 2004, defendant was tried by a jury and convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree uttering of terroristic threats, N.J.S.A. 2C:12-3a, and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The convictions arose from defendant's armed robbery of a jewelry store on January 8, 2003 in Asbury Park. He was sentenced to life in prison without parole pursuant to N.J.S.A. 2C:43-7.1a, which provides:
A person convicted of a crime under any of the following: . . . N.J.S. 2C:15-1 . . . who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions, under any of the foregoing sections or under any similar statute of the United States, this State, or any other state for a crime that is substantially equivalent to a crime under any of the foregoing sections, shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole.
At sentencing, the State established that defendant had prior qualifying convictions for armed robbery in New York, for which he was sentenced on May 28, 1986, and in Cumberland County, New Jersey, for which he was sentenced on December 9, 1987. Defendant was released from confinement in 2002, thereby meeting the requirement of N.J.S.A. 2C:43-7.1c that the 2003 crimes for which he was being sentenced were committed within ten years of that release.
On appeal, we affirmed defendant's convictions in an unreported opinion. State v. Padro, No. A-3127-04 (App. Div. April 23, 2007). In a pro se brief submitted to us, defendant raised the following challenges to his life sentence:
POINT I RESPONDENT'S PERSISTENT OFFENDER'S STATUTE IN NEW JERSEY IS UNCONSTITUTIONAL IN
ITS PRESENT APPLICATION BECAUSE RESPONDENT DOES NOT SATISFY THE TIME LIMITATION PROVISION OF THE PERSISTENT OFFENDER'S STATUTE THAT MAKES ILLEGAL APPELLANT'S PRESENT EXTENDED TERM LIFE SENTENCE.
A. THE COURT ERRED IN RELYING ON DOCUMENTS AND DOCUMENTS REPORTS, AS SOME WAS UNAUTHENTICATED, FROM THE 1986 CONVICTION OF APPELLANT, TO REASON THAT THE 1986 CHARACTERISTICS WAS CHARACTER[ISTIC] OF THE INSTANT OFFENSE AND THUS APPELLANT WARRANT[S] THE LIFETIME EXTENDED TERM AS A PERSISTENT OFFENDER (3 STRIKES) AND THIS VIOLATED APPELLANT'S RIGHT TO A FAIR SENTENCING HEARING.
B. APPELLANT SUBMIT[S] THAT HIS EXTENDED TERM OF LIFE PURSUANT TO THE PERSISTENT OFFENDER'S ACCOUNTABILITY ACT (3 STRIKES)
N.J.S.A. 2C:43-7.1a WAS ILLEGALLY AUTHORIZED WHEN NEW JERSEY COURTS ISSUED [A] CONFLICT-OF-LAW DECISION ON THE EXACT SAME STATUTE THUS APPELLANT'S EXTENDED TERM OF LIFE MUST BE VACATED PURSUANT TO THE 14TH AMEND. U.S. CONST. DUE PROCESS/EQUAL PROTECTION CLAUSES.
We rejected defendant's sentencing and other arguments.
Certification was denied. State v. Padro, 193 N.J. 223 (2007).
Defendant then filed a petition for PCR, raising various arguments that are not before us on appeal. Following argument, PCR was denied by Judge DeStefano in a comprehensive written opinion. As we stated previously, the arguments that defendant raises on appeal were not presented to the PCR judge. Thus, we are not required to consider them. State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Further, the arguments, insofar as they relate to trial counsel, are procedurally barred by Rule 3:22-4.*fn1 We will nonetheless briefly address defendant's contentions, assuming jurisdiction to do so pursuant to Rule 2:10-5; see also State v Harris, 181 N.J. 391, 416-20 (2004).
Defendant notes that one of the convictions that formed the foundation for his life sentence was his 1987 conviction in Cumberland County following a plea of guilty to armed robbery.
On appeal, defendant claims that both trial and PCR counsel were ineffective in failing to challenge the basis for that conviction. With respect to PCR counsel, defendant argues:
"Had PCR counsel examined the record for the Cumberland County conviction, he would have discovered that the transcript of the plea hearing for this crime was not available." As a result, defendant contends, "it would have been necessary for the court to have conducted a hearing in order to determine whether there was a factual basis for the plea that was entered." With respect to his trial counsel, defendant asserts: "Prior to defendant's sentencing, defendant's trial counsel should have reviewed the factual basis of defendant's Cumberland County plea to armed robbery and his conviction."
We reject these arguments. To establish a claim of ineffective assistance of counsel, defendant had the burden of demonstrating by a preponderance of the evidence that counsel's performance was deficient and that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Preciose, 129 N.J. 451, 463-64 (1992); State v. Fritz, 105 N.J. 42, 58 (1987). We find no factual support for the claim that defendant met either of these two prongs. On appeal, defendant has not asserted through a certification or other proof that he, in fact, was not guilty of the Cumberland County offense, either as a principal or accessory to the crime.
Further, he has offered nothing that would suggest that the factual basis for his plea to that crime was inadequate or that he sought through a motion filed in Cumberland County to vacate his plea on that basis. Indeed, the transcript of the sentencing proceeding and the judgment of conviction provide strong evidence that defendant's conviction was factually supported. At sentencing, concurrent twenty-year custodial terms were imposed for armed robberies committed in Cumberland and Atlantic Counties,*fn2 with a ten-year period of parole ineligibility, consecutive to the sentence for armed robbery that defendant was then serving in New York. The sentencing judge described defendant's New Jersey crimes as follows:
On 12/5 1985 you committed an offense of armed robbery, a jewelry store in Vineland. The victim was an elderly man, 67 years old, who was hurt very seriously as a result of this offense. I'm aware that you might not have been in the store, but you conspired, you were part of it. You also received the proceeds.
Just a few days thereafter, on the 13th, you participated in a robbery in Hammonton at Cancuso's Jewelry. This was an armed robbery, and also considered by this court to be a very, very serious offense.
Further, the judgment of conviction stated:
This defendant was convicted of two armed robberies. The court considers the gravity and seriousness of the harm inflicted upon the victim, particularly Leon Zylberman who was 67 years of age at the time. These two crimes were professional and planned.
In support of his position, defendant, ignoring this evidence, relies solely on the fortuitous circumstance that, after more than twenty years, the record of his plea hearing has been destroyed. However, this circumstance is of no assistance to defendant because he, not the State, has the burden of proof.
Our review of the record in this matter satisfies us that defendant has not met his burden.
PCR is denied.