NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-04-0467.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Jose Cedeno appeals from the January 2011 order denying his petition for post-conviction relief (PCR). We conclude the following: (1) defendant's petition was properly barred, and therefore denied, pursuant to Rule 3:22-4; (2) despite the procedural bar, defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel based on her alleged failure to request specific mitigating factors and argue for a sentence less than the negotiated plea; and (3) defendant failed to establish any cumulative error effect in the case. Additionally, the claims asserted against PCR counsel are similarly rejected.
The facts as adduced from the record reveal that between June 29, 2002, and November 5, 2003, defendant had vaginal intercourse with M.P., his sister-in-law, who he knew to be less than thirteen years old at the time.
On April 19, 2005, defendant was charged with three counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (counts one, two and three); two counts of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (counts four and eleven); three counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(a), (counts five, six and seven); and three counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4) (counts eight, nine and ten).
On June 27, 2005, before Judge Thomas Smith, defendant entered a guilty plea as to count one of the indictment. In exchange for defendant's guilty plea, the State agreed to recommend that any sentence of incarceration be a maximum of ten years with an eighty-five-percent parole disqualifier of eight years, six months, and two days, in connection with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). In addition, the State agreed to dismiss the remaining counts of the indictment. However, all the provisions of Megan's Law applied, including community supervision for life (CSL).
On October 7, 2005, defendant appeared before Judge Smith for sentencing. Defendant was sentenced to a term of ten years in prison, with a parole disqualifier of eighty-five percent.
Defendant did not file an appeal. On February 26, 2010, defendant filed a timely pro se PCR petition claiming ineffective assistance of counsel at the time of sentencing. Appointed PCR counsel submitted an amended petition and letter brief on November 18, 2010. The State filed its responsive brief on December 23, 2010. Oral argument was held before Judge Michael J. Haas on January 28, 2011. In a written opinion dated January 31, 2011, the judge denied the petition.
First, the judge found that the ineffective assistance of plea counsel claim, based on defendant's allegation that trial counsel failed to request specific mitigating factors and failed to seek a lesser sentence than the negotiated plea agreement, should have been raised in a direct appeal to the Appellate Division. Due to his failure to do so, the PCR judge found that defendant's petition was barred, and therefore denied, under Rule 3:22-4. Next, the PCR judge concluded that defendant's contentions that trial counsel failed to argue these two matters at sentencing were insufficient to satisfy the first Stricklandprong. In each instance, he noted that there was nothing in the record that substantiated the claim. On the contrary, the judge noted that the "sentence obviously took into account defendant's lack of a prior record" as offered by defense counsel, "and [that] Judge Smith specifically noted mitigating factor [seven] in his sentencing decision." The PCR judge found that defendant failed to identify any additional mitigating factors that trial counsel could have properly asserted. Further, defendant failed to provide any basis for his claim that a lower sentence could have been considered. Based on ...