October 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILFREDO CORTES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-09-00609.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 21, 2011
Before Judges Axelrad and Ostrer.
Defendant Wilfredo Cortes appeals from the Law Division's March 10, 2010 order denying his first petition for post-conviction relief (PCR) asserting disparate sentencing and his request for an evidentiary hearing. We affirm.
On September 18, 2007, a Cape May County grand jury returned Indictment Number 07-09-00609 against Jonas Rodriguez, Joshua Plaza, and defendant. Defendant and co-defendants were all charged with three counts of first-degree armed robbery (counts one, two, and three), second-degree conspiracy to commit armed robbery (count four), and second-degree possession of a weapon for an unlawful purpose (count eight). Defendant was also charged with two counts of second-degree aggravated assault (counts six and seven), and Rodriguez was also charged with third-degree criminal restraint (count five), second-degree eluding (count nine), third-degree theft (count ten), and third-degree receipt of stolen property (count eleven).
On January 3, 2008, pursuant to a negotiated plea agreement, defendant pled guilty to count three, first-degree robbery. He testified Plaza phoned him and asked him to come to Wildwood to help him get back some money or drugs that were taken from him, and the two of them, along with Rodriguez, entered the residence. Defendant admitted he brandished a gun for the purpose of threatening the occupants to induce them to hand over the money or drugs. The property taken from the victims included a car and some cell phones.
On March 20, 2008, Judge Batten sentenced defendant in accordance with the plea agreement. He was sentenced as for a second-degree crime to an eight-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State dismissed the remaining charges. Defendant's plea agreement expressly stated that co-defendants were to plead guilty to robbery and receive a seven-year sentence subject to NERA. At sentencing, the prosecutor noted co-defendant Plaza had been sentenced the day before and Rodriguez was to be sentenced, and defendant had "gotten a slightly greater sentence than the other two." The prosecutor explained that, in contrast to Plaza, defendant had numerous contacts with the criminal justice system as a juvenile and adult.
Defendant did not file a direct appeal. On August 3, 2009, defendant filed a PCR petition. In a pro se submission and that of PCR counsel, defendant argued: (1) the disparity in sentencing between co-defendants and himself warranted re-sentencing him to the same term as they received or, alternatively, examining the disparity between the three sentences in an evidentiary hearing, and (2) he should not be procedurally barred from challenging the excessiveness of his sentence on PCR application because of the "fundamental injustice" of having to serve an additional year of inappropriate incarceration, citing State v. Clark, 65 N.J. 426, 436-38 (1974).
Following oral argument on February 26, 2010, Judge Batten denied defendant's motion. As the record reflects, both co-defendants entered pleas of guilty to first-degree robbery and were sentenced as second-degree offenders to seven-year terms subject to NERA.*fn1 Defendant was expressly informed in the plea agreement he signed on January 3, 2008 that co-defendants would be receiving sentences one year less than that which defendant had negotiated. Although the judge noted defendant's claim of excessive sentence was more appropriately brought on direct appeal, he addressed the merits, stating:
The defendant stood separate and distinct from the other two co-defendants. His criminal -- and certainly as relates to Rodriguez, his criminal record [was] substantially more lengthy and serious, his age, more experienced. His culpability, as Prosecutor Johnson asserted, explained in detail without contradiction or challenge at sentencing and corroborated by the information before the Court in the PSI all constitute individually [a] basis for the one-year distinction or differential in sentences now challenged. Taken together, if anything, the eight-year term of imprisonment, a second-degree term on a first-degree robbery conviction, [is] most reasonable and fair to have been offered by the State in this particular regard.
The denial was memorialized in an order of March 10, 2010, and defendant appealed.
On appeal, defendant argues:
THE COURT ERRED IN SENTENCING DEFENDANT ON COUNT ONE INSTEAD OF COUNT THREE (NOT RAISED BELOW).
THE COURT'S FINDING OF AGGRAVATING FACTORS WAS IMPROPER (NOT RAISED BELOW).
THE COURT ERRED IN FINDING THAT DEFENDANT KNEW BEFORE HIS PLEA THAT HIS CO-DEFENDANTS WOULD RECEIVE LESSER SENTENCES (NOT RAISED BELOW).
THE SENTENCE IMPOSED UPON DEFENDANT WAS DISPARATE TO THOSE OF HIS TWO CO-DEFENDANTS.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL (NOT RAISED BELOW).
Based on our review of the record and applicable law, we are satisfied there is no merit to defendant's disparate sentencing claim -- the sole argument made to Judge Batten on PCR. We affirm substantially for the reasons articulated by the judge on the record. We add the following brief comments.
Defendant's claims in Point III are without factual basis. Defendant was well aware co-defendants would receive slightly more favorable sentences when he entered his plea and was sentenced to an eight-year term as co-defendants' negotiated seven-year sentence was expressly stated in the plea form he signed and noted by the prosecutor at his sentencing.
We are also satisfied defendant and co-defendants were not "identical or substantially similar . . . regarding all relevant sentencing criteria," State v. Roach II, 167 N.J. 565, 569 (200l) (quoting State v. Roach I, 146 N.J. 208, 233 (l996)), and thus the one-year disparity in sentencing was justified; Roach I, supra, 146 N.J. at 232-34. Defendant was twenty-eight years old when he committed the robbery; Plaza was twenty and Rodriguez was nineteen. Rodriguez had one juvenile adjudication and Plaza had no criminal history. In contrast, as found by Judge Batten at sentencing, defendant had convictions for three disorderly persons offenses and two indictable offenses, had received three juvenile diversions, and had seven juvenile adjudications, the first occurring when he was fourteen years of age.
Defendant raises for the first time on appeal an erroneous reference in the judgment of conviction to the count to which he pled guilty (Point I), challenges the sentencing court's finding of aggravating factors (Point II), and asserts an ineffective assistance of PCR claim in failing to submit a certification containing defendant's factual allegations in support of his disparate sentence claim (Point V). We discern no basis to deviate from our general rule that we do not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (l973).