STATE OF NEW JERSEY v. JORGE SOTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5550-04T45550-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE SOTO,

Defendant-Appellant.

________________________________

 

Submitted September 13, 2006 - Decided September 29, 2006

Before Judges Parrillo and Hoens.

On appeal from the Superior Court of New Jersey,

Law Division, Cumberland County, Indictment No.

97-08-00785-T/B.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on

the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (Christina Foglio, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jorge Soto appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1a(1) and (2), first-degree carjacking, N.J.S.A. 2C:15-2, as well as other related crimes. With a gun pointed at the victim, defendant held up the driver of a car and forced him to drive defendant and a cohort to defendant's house. After jury selection, but before openings, defendant agreed to plead guilty to the carjacking count. The State's undertaking was to recommend a custodial term of ten years with a five-year parole bar. However, the trial judge rejected the plea because defendant failed to provide an adequate factual basis despite repeated attempts to do so. The next day, while the trial judge was giving preliminary instructions to the jury, defendant stood up and announced that he was guilty. Prior to ruling on the defense mistrial motion, the judge accepted defendant's renewed guilty plea at a hearing complying in all respects with the applicable provisions of Rule 3:9-2 and 3:9-3. The plea was "open" with no sentence recommendation.

Prior to sentencing, defendant moved to have the original plea agreement enforced, which was denied. He was sentenced to a custodial fifteen-year term with a seven-year period of parole ineligibility. Defendant appealed his sentence, arguing that the judge abused his discretion in refusing to accept the initial plea agreement. The matter was heard on our Excessive Sentence Oral Argument calendar. We affirmed, and the Supreme Court denied defendant's petition for certification. State v. Soto, 164 N.J. 561 (2000). Defendant subsequently filed a motion for sentence reconsideration, which was denied by the Law Division. This PCR petition ensued.

Defendant's PCR petition raised essentially the same arguments that had been considered at sentencing. That is, he claimed remediable ineffective assistance of counsel by reason of counsel's alleged failure to inform defendant of the consequences of his plea and to advance mitigating factors during sentencing. Defendant also argued, as he did on direct appeal and in his motion for reconsideration, that the trial judge should have recused himself because of his prior dealings with defendant. The PCR judge denied defendant's petition.

In appealing from the order of denial, defendant raises the same issues as he did below and in addition, he argues he was entitled to an evidentiary hearing on his ineffective assistance of counsel claim, and that his sentence was excessive and in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004), inasmuch as the seven-year parole bar is two years more than the mandatory minimum.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

As to an evidential hearing, it is well-settled that no such hearing is required in the absence of a prima facie showing of remediable ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Remediable ineffectiveness requires a showing that counsel's performance was deficient as measured by the community standard and that the defective performance prejudiced defendant's right to a fair disposition. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42 (1987). No such showing was made here.

The record is devoid of any competent proof that defendant was misinformed of the consequences of his open plea or that counsel failed to advocate mitigating factors. Moreover, we perceive no reason for the trial judge to have recused himself from the matter. There simply is no basis for the claim that defendant was denied a fair and unbiased hearing and judgment, or that the judge had any personal or private interest apart from fulfillment of his judicial duties. R. 1:12-1(f); see also

State v. Marshall, 148 N.J. 89, 96 (1997); State v. Salentre, 275 N.J. Super. 410, 422 (App. Div.), certif. denied, 138 N.J. 269 (1994). Nor did the judge abuse his discretion in either refusing to accept defendant's initial guilty plea or refusing to enforce the original plea agreement.

Not only do these issues lack substantive merit, they were, in effect, raised and adjudicated below, as was defendant's excessive sentence claim, and as such are precluded from consideration now. R. 3:22-5. In fact, defendant's ineffective assistance of counsel claim, to the extent predicated on the failure to present mitigating factors, is so intertwined with his excessiveness claim on direct appeal that it is barred from PCR review under the rule. Ibid.

Furthermore, defendant did not raise either the excessive sentence or Blakely claim in the PCR proceeding below and for that reason alone is barred from raising it on this appeal. See State v. J.M., 182 N.J. 402, 410 (2005); State v. Mc Graw, 129 N.J. 68, 81 (1992); State v. Churchdale Leasing, Inc., 115 N.J. 83 (1989). In any event, the Blakely holding that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, does not apply to this matter. State v. Natale, 184 N.J. 458, 494 (2005). In Natale, the Court held that its decision would be applied with pipeline retroactivity, that is, to defendants with cases on appeal as of the date of the decision, August 3, 2005, who have raised Blakely claims at trial or on direct appeal. Ibid. Here, Blakely arguments were not raised at sentencing, on direct appeal or even in defendant's PCR petition. In fact, defendant did not have an appeal pending in August 2005. Accordingly, this matter is not in the Blakely pipeline.

The order appealed from is affirmed.

 

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A-5550-04T4

 

September 29, 2006