Opinion
DOCKET NO. A-1142-15T2
02-06-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHNNY MARTINEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Kerry J. Salkin, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 90-03-0889 and 90-08-2468. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Kerry J. Salkin, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Johnny Martinez appeals from the October 1, 2015 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In March 1990, a Hudson County grand jury returned Indictment No. 90-03-0889 ("the first indictment"), charging defendant with robbery, N.J.S.A. 2C:15-1. In August 1990, a Hudson County grand jury returned Indictment No. 09-08-2468 ("the second indictment"), charging defendant with "armed robbery," N.J.S.A. 2C:15-1.
The degree of this offense was not specified in the first indictment. However, the victim testified before the grand jury that defendant and two other men approached him on the street and that defendant then "ripped" a gold chain from around the victim's neck. The victim stated that defendant did not "hit or hurt" him in any way. Thus, this was clearly a second-degree robbery charge because defendant did not "attempt to kill anyone, or purposely inflict[] or attempt[] to inflict serious bodily injury," and he was not "armed with" and did not "use[] or threaten[] the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).
The degree of this offense was not specified in the second indictment. In this case, however, the victim told the grand jury that defendant pushed him up against a wall, punched him, and then ripped three gold chains from the victim's neck at knifepoint. Thus, this was clearly a first-degree armed robbery charge under N.J.S.A. 2C:15-1(b).
Following a four-day trial, a jury convicted defendant on January 17, 1991 of robbery under the first indictment. While defendant was awaiting sentence, he pled guilty to armed robbery under the second indictment on February 22, 1991. In return for defendant's guilty plea, the State agreed to recommend that the trial judge sentence defendant to an indeterminate term not to exceed nineteen years under N.J.S.A. 2C:43-5 and N.J.S.A. 30:4- 148. The State also agreed to request that the judge sentence defendant to an indeterminate term not to exceed seven years for the robbery charge under the first indictment, and to run that sentence concurrent to the sentence imposed under the second indictment.
The plea form specifically stated that defendant pled guilty to first-degree robbery.
Later that same day, the trial judge sentenced defendant in accordance with his plea agreement to an indeterminate term not to exceed nineteen years for the armed robbery charge under the second indictment. The judge also sentenced defendant to a concurrent indeterminate term not to exceed seven years for the robbery charge under the first indictment. In imposing the sentence, the judge found four aggravating factors and no mitigating factors.
The judgments of convictions for both offenses state that the judge found the following aggravating factors: "[t]he serious nature of the offense"; "[t]he need for deterring . . . defendant and others from violating the law"; "[t]he risk that . . . defendant will commit another offense"; and "[t]he imposition of a fine, penalty or order for restitution without also imposing a term of imprisonment could be perceived by . . . defendant or others merely as part of the cost of doing business."
The trial judge also "incorporate[d] all other reasons stated orally on the record for imposing the sentence" for both offenses.
Defendant did not file a direct appeal from his convictions or sentence. On October 12, 1993, defendant was released on parole. On January 15, 1997, defendant absconded and a parole warrant was issued. On January 8, 2014, defendant was arrested and returned to custody. Defendant waived his right to a parole revocation hearing and, on January 29, 2014, the Parole Board revoked defendant's parole and set a sixteen-month parole eligibility term.
On December 16, 2014, defendant filed a petition for PCR. Defendant alleged that the trial judge's imposition of an indeterminate term not to exceed nineteen years under the second indictment was an illegal sentence because the judge did not specifically find "good cause" for imposing a sentence greater than five years under N.J.S.A. 30:4-148. Defendant attempted to obtain copies of the transcripts of the trial under the first indictment, the plea hearing under the second indictment, and the sentencing hearing for both indictments. Because more than twenty years had passed since any of these events, however, the transcripts were no longer available.
Nevertheless, defendant alleged that he remembered that the trial judge did not state on the record at the time of sentencing that there was good cause for imposing a sentence greater than five years. He also claimed that despite the fact that the judge specifically listed four aggravating factors and no mitigating factors on the judgments for conviction for the two offenses, the judge did not "perform an aggravating and mitigating analysis to justify the sentence." Defendant also alleged that his attorney was ineffective because he did not tell him that he could be sentenced to an indeterminate term not to exceed nineteen years; did not object to the imposition of such a term in the absence of a finding of good cause; and permitted him to be sentenced to nineteen years for a "second[-]degree offense" under the second indictment.
Following oral argument, the PCR judge considered these contentions and denied defendant's petition. The PCR judge found that defendant's sentence was legal under N.J.S.A. 30:4-148 because the trial judge found four aggravating factors and no mitigating factors. This finding, the PCR judge concluded, established the "good cause" needed to impose a term exceeding five years.
The PCR judge further found that defendant's claim of ineffective assistance of counsel was time-barred under Rule 3:22-12(a)(1) because defendant did not file it for over twenty-three years after the entry of the judgments of conviction. In addition, the judge ruled that the record clearly reflected that defendant knew he was pleading to a first-degree armed robbery charge under the second indictment and was aware of the sentence the State agreed to recommend for this charge. Thus, the judge determined that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different.
This appeal followed. On February 29, 2016, while the appeal was pending, defendant was released on parole and is no longer incarcerated.
On appeal, defendant presents the following contentions:
POINT I
THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE, INDEPENDENT OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE CODE OF CRIMINAL JUSTICE TO BE PROTECTED FROM AN ILLEGAL SENTENCE RESULTING FROM THE TRIAL COURT'S FAILURE TO MAKE A FINDING OF "GOOD CAUSE" BEFORE IMPOSING AN INDETERMINATE SENTENCE OF NINETEEN (19) YEARS AS REQUIRED BY N.J.S.A. 2C:43-5 AND N.J.S.A. 30:4-148, WAS VIOLATED.
POINT II
THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CHALLENGE THE NINETEEN (19) YEAR INDETERMINATE TERM SENTENCE IMPOSED SATISFIED PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III
THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING R. 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUES RAISED IN DEFENDANT'S PETITION, AND THEIR IMPACT ON THE INTEGRITY OF THE PLEA PROCEEDING, WARRANTED RELAXATION OF THE FIVE (5) YEAR TIME BAR.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
As defendant correctly points out, a request to correct an illegal sentence can be made at any time under Rule 3:21-10(b)(5). State v. Schubert, 212 N.J. 295, 309 (2012). Contrary to defendant's contention, however, the sentence imposed by the trial judge on February 22, 1991 was not an illegal sentence.
N.J.S.A. 2C:43-5 states that "[a]ny person who, at the time of sentencing, is less than [twenty-six] years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex, . . . instead of the sentences otherwise authorized by the code." The length of the indeterminate term is governed by N.J.S.A. 30:4-148, which provides:
Defendant was twenty years old at the time of sentencing.
The courts in sentencing pursuant to N.J.S.A. 2C:43-5 shall not fix or limit the duration of sentence, but the time which any person shall serve in confinement or on parole shall not in any case exceed [five] years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than [five] years; provided, however, that the court, in its discretion, for good cause shown, may impose a sentence greater than [five] years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed.
As noted above, defendant pled guilty under the second indictment to first-degree armed robbery. Although defendant now claims he did not understand he was pleading to a first-degree offense, the plea agreement he signed specifically stated that this was a first-degree crime. The sentencing range for a first-degree offense is between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). Thus, the trial judge was permitted to impose an indeterminate term not to exceed nineteen years "for good cause shown." N.J.S.A. 30:4-148.
Defendant argues that although the transcript is no longer available, he remembers that the trial judge did not specifically state on the record during the February 22, 1991 sentencing proceeding that there was "good cause" for imposing a sentence greater than five years on the armed robbery charge under N.J.S.A. 30:4-148. However, even if defendant's claim is accepted, we have consistently held that a judge may "rely on the aggravating and mitigating factors of N.J.S.A. 2C:44-1 as a basis to explain the sentence [under N.J.S.A. 2C:43-5 and N.J.S.A. 30:4-148], and these factors could be considered an 'inferred articulation' of the good cause standard." State v. Scherzer, 301 N.J. Super. 363, 498 (App. Div. 1997) (quoting State v. Ferguson, 273 N.J. Super. 486, 494 (App. Div.), certif. denied, 138 N.J. 265 (1994)); See also State v. Jarbath, 114 N.J. 394, 402 (1989) (holding that even where a sentencing judge does not specifically use the words "good cause" in imposing an indeterminate term greater than five years, the judge's findings regarding aggravating and mitigating factors are "clearly probative of those elements that are most relevant to sentencing").
Here, the judgment of conviction for the second indictment specifically stated that the trial judge found four significant aggravating factors and no mitigating factors in determining to sentence defendant to an indeterminate term not to exceed nineteen years. Thus, the aggravating factors obviously outweighed the non-existent mitigating factors. Under these circumstances, the PCR judge properly treated the trial judge's findings as "an 'inferred articulation' of the good cause standard." Scherzer, supra, 301 N.J. Super. at 498 (quoting Ferguson, supra, 273 N.J. Super. at 494). Therefore, defendant's sentence was not illegal under N.J.S.A. 2C:43-5 and N.J.S.A. 30:4-148.
The judge made identical findings in determining to impose a concurrent indeterminate term not to exceed seven years in the judgment of conviction for the first indictment.
The PCR judge also properly concluded that defendant's claim of ineffective assistance of counsel was time-barred. Rule 3:22-12(a)(1) specifies that
no petition [for PCR] shall be filed pursuant to this rule more than [five] years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
The five-year time bar established by Rule 3:22-12(a)(1) is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts consider "the extent and cause of the delay, prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice.'" Ibid. (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (citing Mitchell, supra, 126 N.J. at 580).
Applying these standards, we discern no basis for disturbing the PCR judge's determination that defendant's petition, filed more than eighteen years after the expiration of the five-year period, was time-barred. The linchpin of defendant's claim of ineffective assistance of counsel was his allegation that his attorney did not oppose the imposition of an illegal sentence. As discussed above, however, that sentence was not illegal. Therefore, defendant's underlying claim of ineffective assistance of counsel is groundless.
In addition, defendant's contention that his attorney did not advise him that he was pleading guilty to a first-degree offense or that he faced a possible nineteen-year term is belied by the specific terms of the plea agreement he signed and the judgment of conviction. Thus, defendant failed to establish any "excusable neglect" or "exceptional circumstances" warranting relaxation of the five-year time bar set forth in Rule 3:22-12(a)(1).
Because defendant failed to present a prima facie claim of ineffective assistance of counsel, the PCR judge also correctly denied his request for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION