May 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDGARDO L. DIAZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2012
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 COUNTS TWO AND ELEVEN.
1. A CLEAR LEGISLATIVE INTENT TO IMPOSE MULTIPLE PUNISHMENTS DOES NOT EXIST.
2. [DEFENDANT] FACED MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE.
3. [DEFENDANT] DID NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO ASSERT A MERGER CLAIM.
D. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.
POINT II [DEFENDANT'S] MOTION FOR [PCR] SHOULD NOT BE PROCEDURALLY BARRED BY [RULE] 3:22-4 AND 3:22-5.
In denying the PCR, Judge Isabella, who accepted the plea and imposed the sentence, recognized that the sentence resulted from a plea agreement. He also noted defendant's prior record, wherein defendant had seventeen juvenile arrests, including six probationary terms and one adult conviction. The judge further noted that defendant had just completed his term of probation, weeks before committing these charged crimes. In sum, he commented that considering the nature of the offenses and defendant's prior record, the sentence was lenient.
We have carefully considered the record and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments.
Addressing defendant's belated claims of a failure to advance mitigating factors, we conclude that such argument is illusory. For example, defendant's assertion that he was a "family man" was rejected, as the judge noted that defendant's children actually resided in New York with their mother and were not part of defendant's household.
A claim of disparity in sentencing implicates the same considerations as a claim of an excessive sentence. State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996) ("Our scope of review when disparity is alleged does not appear to be any different from a case in which a defendant maintains that the sentence imposed was excessive."). On defendant's direct appeal, we concluded that the sentence was not excessive. We have little cause to revisit that determination.
We reject any claim regarding the disparity between defendant's sentence and the lesser sentence received by Perez. According to the State, Perez cooperated with the police and agreed to testify against his co-defendants. Defendant refused to do so, see State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.) (recognizing the justification of a lesser sentence based on cooperation with law enforcement), certif. denied, 111 N.J. 589 (1988); moreover, the proofs against Perez did not warrant a greater sentence than that which defendant received. Finally, the greater sentence imposed on co-defendant Carattini, the equal sentence imposed on co-defendant Cruz and the lesser sentence imposed on Perez reflected Judge Isabella's careful crafting of sentences to reflect the various elements relevant to the sentencing process, including the various co-defendants' participation in the underlying offenses. There is no basis for our intervention.