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State of New Jersey v. Eliu Santana

January 23, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELIU SANTANA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-06-1631.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2013

Before Judges Harris and Hoffman.

Defendant Eliu Santana appeals from the Law Division's November 7, 2011 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

In 1997, Santana was indicted by a Camden County grand jury for several drug-related and weapons offenses that occurred on September 6, 1996, in Camden. Eight years passed before the matter was resolved, mainly because Santana was incarcerated in Puerto Rico since at least February 4, 1997, when he was sentenced there to a fifty-year term of imprisonment for second-degree murder.

On September 6, 2005, Santana was returned to New Jersey where he pled guilty to a single count of third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. In exchange for the guilty plea, the State agreed to dismiss the remainder of the charges contained in the indictment, and promised to recommend a sentence of three years imprisonment with a three-year parole disqualifier, to be served consecutively to the fifty-year sentence that was imposed in Puerto Rico.

Because "he would be able to be returned to the

[C]ommonwealth of Puerto Rico as soon as [the parties were] done here with the plea," Santana waived his right to appear in person at the time of sentencing. Additionally, he declined to make a statement during the plea allocution, other than to provide a factual basis for the plea and answer several questions touching upon his understanding of the terms of the plea arrangement and his voluntary acceptance of its terms and conditions. On October 17, 2005, in Santana's absence, the sentencing judge imposed the consecutive sentence in accordance with the plea arrangement. No direct appeal was filed.

On December 9, 2009,*fn1 the Puerto Rico Parole Board denied "the privilege of parole to [Santana]," citing two reasons for its decision: (1) "he has a pending sentence to complete in the State of New Jersey" and (2) the "Housing, Offer of Employment and the Advisor friend Candidate submitted by [Santana] have not been confirmed by the corresponding Community Program." According to the written explanation for the denial of parole, "the power to grant the privilege of parole to an incarcerated person in a penal institution in Puerto Rico" takes into account at least eleven discrete factors, only one of which involves the inmate's criminal history. All of these factors are weighed in the Parole Board's evaluation of whether such "privilege shall be granted to an inmate in the best interest of society and when circumstances establish that such a measure will achieve moral and economic rehabilitation of the inmate." The Parole Board's decision explicitly stated that it would "reconsider in August 2010, on which date the Corrections Administration must submit an updated Adjustment and Progress report and a Parole report with a confirmed release plan."

On August 27, 2010,*fn2 the Parole Board again denied Santana's application for parole, finding similar reasons to those expressed in December 2009 -- the pending New Jersey sentence, unsuitable housing, and an inappropriate "advisor friend" -- as militating against granting parole. The Parole Board indicated that it would "reconsider the case in June 2011," requiring "the Corrections Administration [to] submit an updated Adjustment and Progress report, a Short Parole Report with confirmed release plan, an updated Rehabilitation and Treatment Department evaluation or other qualified division and the social and criminal files of [Santana]."

On March 22, 2011, Santana filed the present PCR application in the Law Division. In a memorandum supporting the application, Santana argued that his plea counsel was ineffective because he (1) "allowed Mr. Santana to plead guilty so that the indictment would be dismissed against another person," (2) "[a]llowed Mr. Santana to plead guilty for a sentence consecutive to a 50[-]year sentence thereby creating an excessive sentence; and (3) "[s]imultaneously represented both Mr. Santana and his wife Mrs. Marquez in the same indictment."

Santana supplemented the application by submitting translated records of the Puerto Rico Parole Board, as well as a July 25, 2011 English-language letter from Damian F. Planas Merced, an attorney practicing law -- "Practica Criminal, Civil y Administrativa Especializada" -- in Puerto Rico. Merced's letter contained some inaccurate factual information. For instance, he wrote, "[t]he Puerto Rico Sentence was on February 4, 1997, then Mr. Santana left the jurisdiction and committed the offense [for which he] was sentenced in New Jersey." However, the primary gist of Merced's commentary was less factual in nature, as he expressed the opinion that the New Jersey sentence was the proximate cause of Santana's parole denial in Puerto Rico. Merced wrote, ...


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