July 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
IVAN RODRIGUEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-3772.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Alvarez.
Defendant Ivan Rodriguez appeals from the April 26, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Defendant entered guilty pleas to specified counts on five separate indictments. He was sentenced on November 5, 2004, in accordance with the plea agreement as follows:
(1) On Indictment No. 04-03-1011, first-degree robbery, N.J.S.A. 2C:15-1 (count two) (count one, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1, merged into count two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three), to an aggregate of twenty years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).
(2) On Indictment No. 04-03-1012, two counts of first-degree robbery (counts two and five) (count one, conspiracy to commit robbery merged with count two); unlawful possession of a weapon (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count six), to an aggregate of twenty years subject to NERA.
(3) On Indictment No. 04-03-1013, first-degree robbery (count two) (count one, conspiracy to commit robbery merged with count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five), to an aggregate term of twenty years subject to NERA.
(4) On Indictment No. 04-03-1023, two counts of first-degree robbery (counts two and three) (count one, conspiracy to commit robbery, merged with counts two and three) to an aggregate term of twenty years subject to NERA.
(5) On Indictment No. 03-12-3772, third-degree receiving stolen property (count one), to a term of five years.
All sentences were to be served on a concurrent basis. Defendant appealed, resulting in a remand by the Supreme Court for reconsideration of the sentence pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Rodriguez, 190 N.J. 390 (2007). On August 14, 2007, defendant was resentenced to the same terms. That appeal, heard on the excessive sentence calendar, was also denied. See R. 2:9-11. Defendant's December 28, 2009 PCR petition followed.
The judge who accepted defendant's guilty pleas and sentenced him was also the one who decided the PCR motion. He noted that defendant was out of time for PCR relief. He nonetheless addressed defendant's contentions on the merits:
The first thing that you argue is that [trial counsel] failed to advise you of the . . . burden of proof, and the presumption of innocence, and the nature of the charges. And if we look at some of the papers that were signed, for instance, what's known as the LR27, which is the plea form, it lists every charge that you were charged with. It gives you the degree of each charge. It gives you the maximum sentence and the maximum fine for each charge. And that goes on for every charge that you were charged. And it's broken down by indictment, so that the nature of the charge, the degree of the charge, and the possible penalties --maximum penalties on the charge -- were all on the first paper that you signed, which was the plea form.
You also allege that nobody ever told you about a presumption of innocence and . . . what your possible penalties were. If you look at the transcript of the day you pled, evidentially, . . . at . . . one point you're not sure whether or not you want to plead guilty. And I end up saying to you, "I think we discussed this once before. You understand that if you go down on these charges, not even all of them, you can beat three out of the four armed robberies and do more time than what you were offered. That's only part of your problem.
The big problem is that if you go down on three of these -- if you do down on four of these -- seventeen years is a long time, but the difference is that if you go down [on] three of them at trial, you're going to be three strikes, which means life.
And you should understand that any other plea is going to have to run consecutive because you were out on bail when each of the offenses were committed."
And your response, fairly quickly is, "I'll take it, " meaning I'll take the deal.
Now, when we go through taking your plea, I say to you, you understand that on each of these charges you have a right to jury trial? The State would have the burden of proving these charges beyond a reasonable doubt, because you're pleading guilty there isn't going to be a trial. You give up that right. So, you were told what the charges were, you were told what the burden of proof is, you were told that you were presumed to be innocent, and the nature of each of the charges.
You've asked that the charges be modified to ten to fifteen years and claim ineffective assistance of counsel. On a case that you could have gotten life imprisonment if you went down on three of them, but certainly a lot more than this because if you went to trial, each sentence would have to be consecutive. In other words, finish the first one and you have to do the second one after you finish the first one because the law says if you're out on bail, it runs consecutive.
[Trial counsel] got you, instead of a minimum of eighty years, he got you twenty years. I don't know how that could possibly be taken to be ineffective. I mean, he got you what I think is a really good deal. . . . I don't see anything that Mr. Tamin did that makes his performance ineffective assistance. He certainly -- his performance in getting you a plea that basically gave you four other crimes for free -- his performance certainly didn't fall below that level of a professional attorney.
The only other alternative would have been to go to trial. And I certainly understand why you didn't want to risk --end up doing 40 years at 85 percent. So, I understand the argument.
Defendant raises the following points for our consideration on appeal:
BY RELYING ON THE BASIS THAT THE PETITION WAS TIME BARRED BY STATUTE, THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
ALTERNATIVELY, THE DEFENDANT WAS DENIED THE BENEFIT OF COMPETENT COUNSEL AT HIS PCR HEARING, WHEN HIS COUNSEL FAILED TO RAISE THE ABOVE ARGUMENTS IN THE PCR BRIEF OR ORAL ARGUMENT.
We consider these arguments to be so lacking in merit as not to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
Briefly, defendant attempts to attribute his failure to timely file the petition to the court's failure to advise defendant of the five-year time period. No law supports the position that it was the court's obligation to do so. No facts are identified which establish defendant's excusable neglect for his failure to abide by the relevant time frame.
Most significantly, however, defendant does not raise any claims of error in the merits of the judge's denial of PCR. He clearly addressed defendant's substantive arguments as we have quoted above despite the perceived time bar. Under those circumstances, the issue of whether or not the time bar existed is immaterial. And we see no error in the judge's analysis of defendant's contention that the plea process was not adequately explained to him.