June 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO BRIONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-09-2189.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2012
Before Judges Alvarez and Skillman.
A jury found defendant guilty of various offenses, including carjacking, in violation of N.J.S.A. 2C:15-2; two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b). The trial court sentenced defendant to a twenty-year term of imprisonment, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; fifteen-year terms of imprisonment, with the 85% period of parole ineligibility mandated by NERA, for the two armed robberies, one of which was made concurrent with, and the other of which was made consecutive to, the sentence for carjacking; and a consecutive four-year term of imprisonment for possession of a handgun without a permit. Thus, defendant's original aggregate sentence was thirty-nine years of imprisonment, subject to nearly thirty years of parole ineligibility.
On appeal, we affirmed defendant's conviction in an unreported opinion. State v. Briones, No. A-5190-03 (Mar. 8, 2005). This affirmance was "without prejudice to any post-conviction relief proceeding [defendant] may pursue on the ground of ineffective assistance of trial counsel." (slip op. at 6).
Thereafter, defendant filed a motion with the trial court for reconsideration of his sentence. The court granted the motion, reducing his sentence for carjacking from twenty to twelve years, his sentence for the armed robbery that is to be served consecutively to the sentence for the carjacking from fifteen to ten years, and his sentence for possession of a handgun without a permit from four to three years. The court also reduced defendant's sentence for the armed robbery that was to be served concurrently from fifteen to twelve years. Thus, as a result of this resentencing, defendant's sentence was reduced from thirty-nine years imprisonment, subject to nearly thirty years of parole ineligibility, to twenty-five years imprisonment, with less than nineteen years of parole ineligibility.
Defendant appealed this sentence, which we heard on an excess sentence calendar. See R. 2:9-11. On November 16, 2006, we entered an order remanding the case "for reconsideration of the consecutive sentence imposed upon defendant." State v. Briones, No. A-6598-05.
On that remand, the trial court imposed the same sentence it had imposed as a result of defendant's motion for reconsideration of sentence.
Defendant again appealed. We heard that appeal on an excess sentence calendar, and on October 16, 2007, we issued an oral opinion and memorializing order directing that an amended judgment of conviction be entered under which all of defendant's sentences would be served concurrently. State v. Briones, No. A-4749-06. One of the factors we noted in granting this relief was that lesser sentences had been imposed upon defendant's confederates. As a result of the reduction of defendant's sentence by the trial court and this court's October 16, 2007 order, defendant's aggregate sentence is now twelve years imprisonment, with somewhat more than ten years of parole ineligibility.
In 2005, defendant filed a petition for post-conviction relief, which was not heard until 2010. Defendant claimed in the brief in support of that petition that he had received ineffective assistance from his original trial and appellate counsel. Defendant did not claim that he had received ineffective assistance from the counsel who represented him in the subsequent proceedings that had resulted in a substantial reduction in his sentence. On June 18, 2010, the trial court issued an oral opinion denying defendant's petition. This denial was memorialized by an order entered on July 1, 2010.
On appeal from the denial of his petition, defendant presents the following arguments:
POINT I THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.
A. The Sentencing Court Erroneously Found and Applied Aggravating Factors.
B. The Sentencing Court Erroneously Failed to Find and Apply Mitigating Factors.
C. The Sentence is Far Harsher Than That Imposed Upon the Co-defendants and is Therefore Illegal.
C. The Sentencing Court Erred in Applying NERA to the Sentence.
POINT II THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DURING SENTENCING.
POINT III THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT IV THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RESULTED IN A WRONGFUL SENTENCE. POINT V THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT VI THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VII THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's June 18, 2010 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that as a result of the trial court's reduction of defendant's sentence and this court's order requiring all of his sentences to be served concurrently, defendant's sentence is only three years longer than the sentence imposed upon one of his confederates who pled guilty pursuant to a plea agreement. We also note that although defendant was a first-offender, he was the one who supplied the handgun used to commit the offenses.
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