On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 80-11-1450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Messano and Waugh.
Defendant Arnaldo Infante appeals the denial of his petition for post-conviction relief (PCR). We affirm. Infante pled guilty to armed robbery and was sentenced to fifteen years imprisonment in 1981. He served approximately six years before being released on parole.
In 1987, Infante pled guilty to cocaine possession with intent to distribute and was sentenced to seven years imprisonment. That offense was committed while Infante was on parole. In 1991, he filed a timely PCR petition with respect to the cocaine conviction. The petition was dismissed on its merits. A second PCR petition with respect to that offense was dismissed as untimely in 2008.
Following completion of his armed robbery and cocaine sentences, Infante was convicted and sentenced on a federal offense. In December 2007, while in federal custody, Infante filed the PCR petition at issue in this appeal, in which he seeks to overturn the armed robbery conviction on the grounds of ineffective assistance of counsel and the purported involuntary nature of his guilty plea.
The PCR judge dismissed Infante's petition without an evidentiary hearing. He found it to be untimely, noting that Infante knew that PCR relief was available in 1991 when he filed his petition regarding the cocaine offense. Nevertheless, the judge considered Infante's substantive claims, but found them to be without merit. This appeal followed.
On appeal, Infante raises the following issues:
POINT I: THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS BARRED BY THE FIVE YEAR LIMITATIONS PERIOD SET FORTH IN R. 2C: [sic] 3:22-12.
A. DEFENDANT HAS ESTABLISHED EXCUSABLE NEGLECT FOR THE DELAY.
B. R. 3:22-12(A)'S BAR SHOULD BE RELAXED TO AVOID INJUSTICE.
PONIT II: THE PCR COURT ERRED BY FINDING THAT DEFENDANT'S TRIAL COUNSEL RENDERED EFFECTIVE ASSISTANCE OF COUNSEL.
A. THE PCR COURT COMMITTED PLAIN ERROR BY FAILING TO APPLY THE STANDARD IN ROE V. FLORES-ORTEGA TO DETERMINE WHETHER DEFENDANT'S TRIAL COUNSEL VIOLATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A NOTICE OF APPEAL OF DEFENDANT'S CONVICTION AND SENTENCE AND, THEREFORE, THE ORDER DENYING PCR MUST BE VACATED AND REMANDED FOR A HEARING CONSISTENT WITH ROE. (Not raised below).
B. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO REQUEST A SPANISH-SPEAKING INTERPRETER FOR THE DEFENDANT AT THE PLEA AND SENTENCING HEARINGS.
C. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL'S [sic] DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY MISADVISING THE DEFENDANT WITH CORRECT LEGAL ADVICE REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.
D. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE FOR MISADVISING THE DEFENDANT REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.
POINT III: THE PCR COURT ERRED BY HOLDING THAT THE DEFENDANT'S GUILTY PLEA WAS VOLUNTARY.
POINT IV: THE PCR COURT ERRED BY HOLDING THAT THERE WAS NO CUMULATIVE ERROR.
POINT V: ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN ...