On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-1027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Carchman.
After being named as a defendant in a nine-count indictment,*fn1 defendant Edgardo Diaz entered into a plea agreement with the State and pled guilty to first-degree robbery, N.J.S.A. 2C:15-1; first-degree aggravated manslaughter, as amended from the original charge of murder, N.J.S.A. 2C:11-4(a)(1); and conspiracy to commit robbery, N.J.S.A. 2C:5-2, and N.J.S.A. 2C:15-1. Consistent with the terms of the plea agreement, on December 22, 2005, the trial judge sentenced defendant to an aggregate term of ten years of imprisonment, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant's co-defendants also entered guilty pleas and were sentenced to varying terms: one co-defendant, Erik Carattini, received an aggregate sentence of nineteen years of imprisonment; a second co-defendant, Jonathan Cruz, received the same sentence as defendant; and a third co-defendant, Davy Perez, received a sentence of five years of imprisonment.
The offenses arose as a result of a planned robbery, which had occurred in October 2002. At that time, Carattini, armed with a handgun, shot and killed one of the victims. As part of his plea agreement, Perez agreed to cooperate with the State. According to the prosecutor, defendant was not willing to do so. All defendants pled guilty and despite being exposed to sentences in excess of thirty years of incarceration, were sentenced to the terms of imprisonment that we described.
Defendant appealed his sentence to the excessive sentencing on appeal (ESOA) panel, and we affirmed the sentence, concluding that it was not "manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." Defendant did not raise any other issue on appeal.
Defendant filed a petition for post-conviction relief (PCR).*fn2 In his PCR, defendant raised the following issues:
POINT I [DEFENDANT'S] PETITION FOR [PCR] MUST BE GRANTED BECAUSE [HE] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. [DEFENDANT'S TRIAL COUNSEL] WAS INEFFECTIVE BECAUSE HE FAILED TO INVESTIGATE ANY FACTS OR LAW RELATED TO THE MATTER.
B. [DEFENSE COUNSEL AND THE ASSISTANT DEPUTY PUBLIC DEFENDER] WERE INEFFECTIVE BECAUSE THEY FAILED TO RAISE A DISIPARITY ISSUE.
C. [DEFENSE COUNSEL] WAS INEFFECTIVE BECAUSE HE FAILED TO ARGUE FOR THE MERGER OF ...